Volume 3 — Vermont Reports

<p>A rule for taxing costs where declarations on book are filed in offset to actions in the county court, according to the 93d section of the judiciary act.</p>

This was an action of ejectment for city, or quarter acre lots, nos. 124 and 125, in the town of Burlington. Plea, general issue. At the trial in the county court it appeared in evidence that one Abraham Van Wyck was the original proprietor of the lots in question, and that on die second day of March, 1797, he conveyed them to JDaniel Hurlburt. The deed was recorded the 21st day of March, 1799» From Iiurlbu-it there was a regular chain of title down to the plaintiff.

<p>This action was commenced before a justice of the peace against the defendant as sheriff of Chittenden county for neglectingto serve a writ of execution according to law. The writ was made returnable on the 18th day of May, and served on the defendant on the 2d day of May, sixteen days before the day of the return. The suit having been brought into the county court by appeal, the fendant pleaded in abatement, that there had not been legal service of the writ, the statute requiring that it should have been served eighteen days before the time set for trial. To this plea the plaintiff demurred, and the court decided that the plea was insufficient. The defendant excepted to the decision of the court, and the cause was removed to the Supreme Court for a final hearing therein.</p> <p>For the 'plaintiff, it was contended, That the defendant was entitled to no more than six days notice ; because</p> <p>1st. The 24th section of the judiciary act, on which the defendant’s exceptions are founded, relates only to suits instituted in the Supreme and county courts .The actby its title extends nofarther. The 24th section, in all the former part of it, relates to those courts only. The phraseology of the act, and of the section on which the defendant’s exceptions are predicated, warrant this inference. It says, writs shall be served twelve days, &tc. before the session of the courts to which the same are returnable. The legislature did not intend the act as applicable to justices’ courts, or they would not, in the act providing for maintaining suits by and against corporations, (Rov’d Stat.p. 157,) provide for their having thirty days notice in all cases. It would have been unnecessary, had the judiciary act extended to proceedings before justices of the peace. Had they intended the act to extend to justices of the peace, they would have expressed it in the act providing for the jurisdiction of justices, or in the act relating to sheriffs. It will be noticed they were all under consideration at the same time. The</p> <p>Judiciary aet was passed March 2, 1797 ; the</p> <p>Corporation act „ March 2, 1797 ; the</p> <p>Justice’s act „ March 4, 1797, and the</p> <p>Sheriff’s act „ March 6, 1797.</p> <p>Now the construction contended for by the defendant would givf sheriffs twelve days more time than other individuals before justices, and only six days more in the higher courts. If, as the defendant contends, the additional time ,was given sheriffs to enable them to prosecute the deputy, or debtor’s bond, and the legislature had considered that the trifling suits brought before justices of the peace were of sufficient importance to render it necessary they should have such privileges before justices, they would have provided that they should have twelve days notice. But the more natural inference is, that the legislature deemed such demands too small to embarrass the sheriff, orto require time for prosecuting the bonds, and that an officer néglecting such demands should have no such privilege.</p> <p>2nd. If the judiciary act could ever have been, constructively extended to proceedings before justices of the peace, it is contended, that the legislature, by the act regulating the jurisdiction of justices, (Rov’d stat. 124J having erected a separate and independent court, prescribed the forms, time of service, and course oí proceedings, before it; and having provided for certain exceptions to the time of service, and not having made the exceptions contended for, have excluded the conclusion claimed by the defendant.</p> <p>3d. The plaintiff also contends, that all exceptions from general laws in favor of particular individuals, should be conclusively shown and strictly construed, and that no such exceptions should be created by inference or argument, and especially when the effect of such exception would be to delay the collection of small claims which it has ever been the object of the legislature and judiciary to facilitate. Now the 9th section of the justice act which regulates the service of writs, returnable before justices of the peace, is general, and comprehends all writs which may be issued by them. — Revised stat. p. 127.</p> <p>For the defendant, it was contended, That the provisions of the 24th section of the judiciary act apply to this case. This act is not confined to proceedings in the county and Supreme Court; but according to its terms is intended to regulate judicial proceedings. The service of writs generally before the county court is twelve days — before justices,six days — before court. The case of writs against officers is an exception to the general rule.</p> <p>The several acts are to be construed as if they were different sections of the same act; in which case the sheriff would be entitled to eighteen days’ notice. Or it may he construed as if it was an independent act; in which case it would be equally clear. No • r i* argument can be raised against this construction Irom the circumstance that the judiciary act contains a provision relative to the service of writs against towns, &tc. and that the legislature have passed another and independent act on that subject. — Siat. p. 156, sec. 3. Neither can any objection arise from the expression in the act, “ before the session of the court" Every reason for giving the sheriff additional time in the one case exists in the other. If it be said that by the letter of the justice’s act (Stat. 127, sec. §.) six days notice only are required in all writs, we reply that by the letter it is confined to such writs as are directed to the sheriff, and which he may serve.</p>

This was an action of assumpsit brought to recover the expenses incurred by the town of Essex in the support and maintenance of one Sally Mansjield, a pauper, whose legal settlement was alleged to be in Milton.

This was an action of ejectment to recover the seizin, &c. of about thirteen-acres of land with the tenements thereto belonging, being part of lot no. — -—At the trial in the county court the plaintiff proved that in March, 1799, one Benjamin Adams lived on the premises in question with his family, and remained there till the year 1807 ; that afterwards one Elliclc Powell purchased of Adams and occupied the same till the spring of 1813, when Abram Brinsmaid entered under…

This was an appeal from the order of two justices of the peace made on the complaint of the overseer of the poor of the town of Georgia for tbe removal of Barnabus Raymond, Polly Raymond, wife of said Barnabus, and Mary Raymond, Charity Raymond, Nahum Raymond, Huldah Raymond, Barnabus-Raymond, jun. John Raymond and Christiana Raymond, children of said Bar-nabns Raymond and wife, from Georgia to St. Albans.

This was an action of hoolc account, originally commenced before a justice of the peace, and the declaration concluded to the damage of the plaintiff eight dollars. At the trial before the justice the defendant pleaded in offset a book account consisting of two items, amounting to $23. A jury was empannelled to try the issue ; but the defendant did not offer any evidence in support of bis claim in offset, nor even éxhibil the account to the jury.

This was an action on the case brought against the defendant, as sheriff of the county of Franklin, for suffering certain articles of personal property attached by him on a writ of attachment in favor of the plaintiffs against W. H. Wilkins and 8. A. Wilkins.

<p>This was an action on the case for selling and warranting to the plaintiffa certain mare as sound, but which was unsound and diseased, and that known to the defendant at the time of the sale. The declaration was as follows :</p> <p>“ Zadoclc Suele is attached to answer unto Joseph Beeman oí t; Fairfax in a plea that the said Joseph Beeman, on the 26th “ day of August, 1826, at Fairfax, aforesaid, bargained with the “ said Zadoclc Buck to buy of said Zadock a certain bay mare ; “ and the said Zadock Buck, well knowing the same bay mare to “ be unsound, and infected with certain distempers, such as the “ yellow-water, consumption, &c. by then and there warranting “ the said bay mare to be sound, and free from any distemper “ whatever, then and there deceitfully sold the said mare to the “ said Joseph Beeman for the sum of thirty five dollars : which “ said bay mare, at the time of the sale,was unsound, and infected “ with yellow-water and consumption ; of which disease the said “ mare died. And so the said Zadock falsely and fraudulently “ deceived said Joseph</p> <p>Plea not guilty.</p> <p>At the trial in the county court, Ppestiss, J. presiding, the plaintiff, to support the issue on his part, proved that in August, 1826, he bargained with the defendant to buy the mare mentioned in the declaration, at such price as should be put upon her by certain men agreed upon by the parties to appraise her value ; that the appraisers examined the mare, and one of them asked the defendant what made her so poor, and if they should appraise her as sound ? To which the defendant replied, that she had been kept in a dry pasture, and was well, as far as he knew, and they might appraise her as sound. Another witness proved that the defendant said the mare was well, and that he directed the appraisers to appraise her as a well mare; that the appraisers accordingly considered the mare as sound, and appraised her at the sum of thirty five dollars ; which sum the plaintiff paid the defendant, and the mare was thereupon delivered to the plaintiff- The plaintiff also proved that the mare died in December, 1826, with the disease called the yellow-water; and gave evidence tending to prove that the disease with which the mare died was upon her at the time the defendant sold her to him.</p> <p>The defendant on his part proved that he purchased the mare •about two weeks before he sold her to the plaintiff; that he bought her as sound, and paid the sum of thirty five dollars for her; and gave evidence tending to prove that before and at the time of the sale to the plaintiff, the mare was sound, and that the disease of which she died originated after the sale, and was produced by the hard service to which she was put by the plaintiff and others.</p> <p>The counsel for the plaintiff’contended, that the evidence given showed a warranty on the part of the defendant, that the mare was sound ; and further, that the jury, from a consideration of the time the defendant had owned the mare, and her appearance before and at the time of the sale, ought to find that the defendant knew the mare was diseased ; and the counsel requested the court to charge the jury, that if they-fdund the mare was unsound at the time of the sale, and that the defendant knew it, or warranted her to be sound, the plaintiff was entitled to recover.</p> <p>The counsel for the defendant insisted, that unless the jury found the mare was unsound at the time of the sale, and also that the defendant knew it, and was thus guilty of a fraud, the plaintiff was not entitled to recover ; — that proof of a warranty would not support the declaration ; but if it would, there was no evidence of a warranty ; and requested the court so to charge the jury.</p> <p>The court instructed the jury, That if the mare was diseased at the time of the sale, as alleged, and there was either fraud in the sale, or a warranty, the plaintiff would be entitled to recover—</p> <p>That to constitute fraud, it must appear the defendant, at the time of the sale, knew the mare was thus diseased, of which fact the court saw no evidence in the case ; and if the jury were of the same opinion, the plaintiff could not recover, unless they found an express warranty — That no particular form of words was necessary to constitute a warranty ; but a mere expression of judgement and opinion would not amount to a warranty ; and the jury would say whether the affirmation proved to have been made by the defendant, that the mare was well and sound, complied with the direction given by him to the appraisers, to appraise her as sound, was an expression of his belief and opinion, only, of her soundness, or was intended, and understood by the parties, and was made and received as an engagement on the part of the defendant, that the mare was sound. In the latter case, it would amount to a warranty, and the plaintiff would be entitled to recover, if the jury were of opinion, from the evidence, that the disease of which the mare died existed in her constitution at the time of the-sale although it presented no decisive or unequivocal appearances until some- time afterwards.</p> <p>The jury returned a verdict for the plaintiff. A bill of exceptions having been allowed stating the foregoing facts, the cause on motion- of the defendant’s counsel, was removed to this Court ; and the question now was whether the eounty court erred in their directions to the jury.</p> <p>Argument for the defendant. — It is contended on the part of the defendant, that in this action the scienter, or knowledge of the defendant at the time of the sale ofthe unsoundness of the mare, is the gist of the action, and that although the jury might find that the defendant sold the mare, and warranted her sound to the plaintiff, yet, unless they also found, that the defendant knew she was unsound at the time of the sale, he would not be entitled to recover in this form of action. Farnsworth vs. Wright, decided by the Supreme Court, January T. 1828, in Franklin County.</p> <p>Argument for the plaintiff. — We contend that the charge of the county court was legal. The ground of the action is deceit, which, in regard to the defendant,may be actual or constructive;— actual, in case he knew of the unsoundness, and constructive, if he gave a warranty not knowing whether the mare was sound or not; for the consequences to the plaintiff are the same, and he is equally deceived in either case. That case is a proper action upon the warranty is shown by all the authorities, and that in such action, the warranty alone, without proof of the scienter, will entitle the party to recoveras fully established by Williamson vs. Allison, 2 East, 446. And we insist, that as the ground of action is deceit, the plaintiff must recover on proof of actual fraud without a warranty; for the warranty is only alleged as one of the means by which the deceit was effected, and does not control the operation ofthe other means alleged, though it is the only one from which a legal presumption of deceit will be made without proof of the scienter. The latter question does not necessarily arise in this case, since it cannot be supposed that the jury gave their verdict upon the ground of fraud without a warranty. There are, therefore, but two questions in the case; whether the declarations of the defendant and the mode of appraisal were proper evidence to go to the jury in proof of the warranty, and whether the warranty, without actual fraud, entitled the plaintiff to recover. Upon the first the language of the charge is a perfect exposition of. the law, and the latter has already been considered.</p>

This was an action of book account in which there had been a judgement to account, and an auditor appointed to adjust the claims of the parties, who had made his report to the county court where the action was pending.

This was an action of assumpsit brought by the endorsee of a promissory note against the endorser. It was originally commenced before a justice of the peace,and came into the county court by appeal.

This was an action on promissory note originally commenced before a justice of the peace. The defendant pleaded a book account in offset, and also set up a defence under the statute of usury. The justice decided that the note was usurious and void, and rendered a judgement for the defendant on his account for $13,99. The plaintiff appealed from that judgement to the county court, where the defendant filed a declaration in offset under the statute.

This was an appeal from the adjudication of commissioners appointed to settle and adjust the claims against the defendants’ intestate. The declaration was in assumpsit on a promissory note, dated Nov. 20, 1815, and signed by the intestate, and William Slade jun. and Augustus F. Conant, for nine hundred dollars, payable jointly and severally to A- & J. Austin. Plea, the general issue.

Action of trespass for taking and carrying away six sheep.— Plea, general issue. On the trial at December term, 1829, Williams, J. presiding, it appeared in evidence that in October, 1828, the defendants stated Bulloch had a large flock of sheep, and had stolen one half of them, and that they went, without any notice to him, to his pasture, and took six sheep from his flock, and claimed them as their own property.

This was an action gf debt on’a jail bond executed by Russel Richards to the sheriff of Addisor* county to secure him against an escape oí Richards who was then ’confined in prison on an execution in favor of the plaintiff. It w'as tried in the county court on the following statement of facts agreed to by the parties: “After the commitment of Richa rds, and before his departure* from the liberties, he was admitted to th e poor debtor’s oath,and obtained his certificate.

This was an action of assumpsit brought against Samuel Hurl-hurt, Canfield Dorwin, and Thomas M. Dorwin, late partners under the firm of Hurlburt & Dorwins, on a promissory note made payable to Jerusha Woodford, bearing date December 1st, 1820,(about three months after her intermarriage with said Timothy) for $281,48, made payable one year from date, with interest, and signed by said Samuel Hurlburt by the name and firm of Hurlburt & Dorwins, Service of the writ was made…

This was an appeal from an order for the removal of Chios Langioorthy, the wife of Sheffield Langworthy, a pauper, from JYew-Haven to Vergennes, as the place of her last legal settlement. Issue to the court, whether Vergennes was the place of the pauper’s last legal settlement ?

Action of trespass quare clausum fregit. Plea, — general issue, and notice, in conformity to the statute, that the defendant would rely in his defence on a certain release or discharge in writing of all the trespasses or Injuries done by the defendant on said undivided lands, bearing date the 5th day of June A. D. 1829, acknowledging a consideration paid of twenty-five dollars, and signed by James Bushnell and Milo J. Bushnell,two of the proprietors of said Undivided lands…

Action of trover for two promissory notes executed by the plaintiff on the exchange of horses for the difference in the supposed value. One of the notes was made payable to a third person, the other to the defendant. At the time of the exchange it was agreed by the parties that, if the defendant’s horse should prove unsound, the contract was to be rescinded. The bargain was afterwards, by mutual consent, rescinded, and the defendant thereupon agreed to return the notes.

This case came before the Court on exceptions made to a report of auditors in an action on booh account. The report stated, “ That the defendants assented to the plaintiffs’ charges made directly against them as partners from the 20th day of May, 1824, to the 25th day of November, 1824, but objected to all charges subsequent to that time, and also to the charges made against John J. Shipherd, $ 167,17, and the interest on the same.

This was an indictment under the 5th section of the act for the punishment of certain inferior crimes and misdemeanors ; which section provides, “ That if any person or persons shall impede “ or hinder any officer, judicial or executive, civil or military, un- “ der the authority of this state, in the execution of his office; such “ person or persons, on conviction thereof, shall pay a fine,” &c. The indictment was as follows : “ The grand jurors within and for the body of…

Action of assault and battery and false imprisonment, wherein the plaintifl declared that the defendant, without any reasonable or probable cause, had made an assault on the plaintiff, and committed him to the common jail in Bennington, and there imprisoned him for the space of ten months and fifteen days.

On the 8th day of May, 1828, two justices made an order of removal of one Elisha Johnson and his family from Londonderry to Acton. The town of Acton appealed to the county court, and there pleaded, that, at the time of making the order, Johnson and family were not likely to become chargeable to the toion of Lon-donderry. Issue was joined to the jury.

This was an action of tresspass for taking and carrying away a printing press and various descriptions of types and instruments used in printing. Defendant pleaded the general issue, reserving liberty of giving special matter in evidence undersuch issue, without notice. Plaintiff joined issue, consenting to said reservation.

The respondent was indicted for shutting a turnpike gate which had been opened by the turnpike inspectors, by virtue of the act of 1806, “directing the appointmentofturnpike inspectors, and regulating their office and duty.” The jury found a verdict of guilty against the respondent, and he filed a motion in arrest for the insufficiency of the indictment, which was overruled by the county court.

This was an action of assumpsit, and the count which was principally relied on was for money had and received.

This was a petition to the court of chancery brought by Jlrms for a rehearing in a cause in which there had been a decree against him in favor oí Mead. The petitioner prayed for a rehearing on the ground that, since the trial of the cause, he had discovered new and material evidence not known to him before.

Action of assumpsit on promissory note, dated Nov. 14,1814, for forty dollars, payable to bearer in sixty days from date.

This was an indictment for selling liquors without a license, on Which the respondent was found guilty by the jury j and he after-wards filed a motion in arrest for the insufficiency of the indictment, which was as follows i “ The grand jurors within and for the body of the county of Caledonia aforesaid, now here in court, duly efflpanneled and sworn, on their oaths present, — That William Sommers, 2d. of Barnet, in said county, of Caledonia, on the second day of September,…

<p>Where an attorney claims a lien on a judgement for his costs, it is no[ necessary lie should give notice in person to the judgement debtor. Any notice to him which is of a character to obtain credit in ordinary circumstances, that the attorney will insist on his lien, will be sufficient and binding on the debtor, and he will not be protected by a discharge afterwards procured from the judgement creditor.</p>

<p>(in Chancery.)</p> <p>All persons interested ought to be made parties to a bill in chancery.</p> <p>Where one of several partners received a mortgage in his own name for a partnership debt, and afterwards brought a bill in his separate capacity to foreclose the equity of redemption of the mortgaged premises, it was held, on demurrer, that the other partners ought to have joined as co-orators in the bill.</p> <p>In this case an amendment was allowed on payment of the defendant’s cost of the term.</p>

<p>This was an action of assumpsit up.on two notes; and upon the general issue joined, the jury found a verdict for the plaintiff. Exceptions were filed and allowed to the decisions of the county court; and the same came to this court for their revision.</p> <p>It appears from the bill oí exceptions, that, at the date of the notes sued, these and two other notes were given by the defendants for the consideration money of a purchase of land by them of the plaintiff, payable, one in each of four successive years. That the plaintiff at the same time gave the defendants a bond binding himself to convey to them the land when the payments should all be made : also binding himself to suffer the defendants to occupy, possess and improve the same land, they paying all the taxes, and committing and suffering no waste on the premises. Then, on the first neglect of the defendants to fulfil the agreement on their part, said bond was to be null and void, and the plaintiff was to have right to reenter upon said land, and dispose of it to any other person as he should please,without accountability to said defendants. It further appears that the defendants’ counsel requested the court to instruct the jury that, there being no evidence to show that the defendants had possessed the land, the plaintiff was not entitled to recover upon that noté which last became due,of the two now in suit: but the court instructed the jury to find for the plaintiff the amount of both notes and interest for the same.</p> <p>Upon these exceptions, the defendants’ counsel now urged in argument, that, upon the first failure of the defendants in making payment,the bond 'was void by its own terms. That, though they might be liable to pay the first note, as there was no pretence of failure on their part till that note became payable, the failure to pay that note rendered the bond void as to all future liability of the plaintiff upon the same, and wholly removed the consideration for the remaining notes, so that no recovery could be had upon them.</p> <p>The answer of the plaintiff’s counsel in substance was that the giving the bond by the plaintiff was a good consideration for the notes ; and, if the consideration had failed, it was by reason of defendants’ neglect; that they could not take advantage oí their own wrong to defeat the plaintiff’s rights. And further, that the consideration of the notes bad' not failed,., as the plaintiff had not elected to consider the bond-void. See 13 Johns. Rep. 44. And, if judgement were recovered on the notes, the bond revived, and no injustice would be done to the defendants.</p>

<p>Avery ancient charter of a township of land, that contains no description of the land itself, is admissible in evidence, and may be rendered perfect by proof df-a location and long possession under it.</p> <p>*The copies of the probate records of a division of an estate among 'heirs, are not defective by reason that the register has certified the same to be true extracts, when he has copied all that need be recorded to rendei the division legal.</p> <p>•"Nor because he 1ms certified an extract from the warrant, and not from the record of the warrant of division.</p>

<p>This was an action of covenant broken, by the declaration and pleadings in which it appears the plaintiff and defendant, and one Russel Bridgeman, had been dealing as partners ; and, in order to close their dealings,submitted all their matters of partnership, including the division among them of the partnership property on hand, to certain arbitrators, and all signed a Writing containing mutual, individual covenants to abide and perform the award. An award Was made July 6, 1827, including all matters submitted, and pointing out certain payments, and dividing cattle and some debts among them, adding, “ and all the other remaining demands concerning the company shall be for the benefit and sole use of the said Dorman Bridgeman, the plaintiff.” Then 'followed an award, that each should release to the other all claims, suits, controversies and demands whatsoever, to the date of said award; which date was July 6, 1827.</p> <p>The declaration, after setting forth this award, alleged, as a breach of the defendant’s covenant, that there was a contract, by which one Carter was holden to deliver to said company 2500 cedar rails; that this contract was in the custody of the defendant, and that he was often requested, and especially on the second day of January, 1830, to deliver said contract to the plaintiff; but he refused, and then delivered it up to Carter,, and received the amount, averring that this contract was one of those awarded to the plaintiff.</p> <p>The defendant pleaded in bar a release dated July 7, 1827, executed to him by the plaintiff, in full of ail demands, naming over every thing capable of being named, from the beginning of the world to the day of executing said discharge, to wit, July 7, 1827. To this plea the plaintiff demurred, and the defendant .joined in the demurrer.</p> <p>The county court adjudged this plea insufficient. The defendant excepted to this decision, and the action was brought up to this Cou rt for revision and adjudication.</p> <p>Mr. Cushman now argued for the defendant. In actions of covenant there is strictly nó general issue > for the plea of non est factum only puts the deed in issue. — Defendant must plead a J J, : release. — 1 Chitty, 482.</p> <p>2. A release of all demands excludes the party from all actions, or rights of action. — 2 Jac. Law Die. 238.</p> <p>3. A release of all demands discharges a bond payable at a future day.--5 Jac. L. Die. 438 ; Co. Lit. 292.</p> <p>4. The rule, that a release of all demands does not operate as a discharge of covenants not broken, does not apply when the right of action does not accrue from the specialty alone; but where the plaintiff must set forth acts to be performed, and aver a non-performance, as in this case. — 4 Dane, 238 ; Co. Mr. 202.</p> <p>5. The release is executed in fulfilmentofthe award.</p> <p>6. The release is a discharge of all claims accruing from the award ; and, therefore, a good defence in this action.</p> <p>7. If defendant could produce a release of the demand for rails, in particular, it would constitute a good defence : and no less full and efficacious is this release,not only for the vails,but for every other demand whatever.</p> <p>8. Whatever will operate as a discharge of any demand, arising out of the award, will also discharge all right of action, arising out of the submission.</p> <p>9. The defendant cannot avoid the effect of his release, by declaring in covenant.</p> <p>Mr. Mattocks, for the plaintiff. — 1. The plaintiff’s cause of action accrued in January, 1830, when defendant refused to deliver the note on demand, and gave it to Carter to be cancelled, on receiving the amount. This violated the award, which said, “ all notes, fee. should be for the sole benefit and control of plaintiff.” Strike out this averment, and there is no breach assigned. — The release, therefore, cannot afieetthe cause of action, which, on the 7th July, 1827, did not exist.</p> <p>2. It is a maxim of the Jaw, “ that a release, and the general words of it, shall be restrained and bound to the intent of the parties.” — ! Swijt’s Dig. 300-1 ; 2 Com. Dig. 671, and the authorities there cited. The case shows, that it was the intention of the parties to release all claims existing before the award, and such present claims as the award gave them ; but any right growing out of the award could not have been intended to be discharged nor any wrongful act of defendant in violation of those rights. Suppose the defendant had long after the release discharged all the demands awarded to plaintiff — was the release prospective »enough to shield him ? If plaintiff is barred from this form of action, for this injury, he would be from any action for any injury relating to the subject matter of the award. And this discharge, if the word covenant had been used, which is not, would not release a contingent right, nor a personal covenant before breach. — Ty-nan vs. Bridges, Croke Jas. 300 ;— Coke. IAt. 292, note ;— Stephens vs. Snotu., 2 Salk. 578 ; — Jacob’s L. D., Release ;— Bor's Case, Coke's Rep. 161.</p> <p>3. But a demurrer to a plea may recoil. Is the declaration sufficient? 1. A covenant to two is several, if the interest is several. See the doctrine of joint and several covenants, Ears, of Castle vs. Clipham, 1 Saunders, 153, and notes ; — 4 Dane, 54. Covenant is the proper action on a sealed instrument, without penalty, to perform an award. — 5 Dane, 125. 2. Two were empowered to make the award, and they all assembled and heard the parties. 3. Defendant covenanted “ to stand to and perform” the award. The ancient case of Johnson vs. Proctor, and the leading case of Browning vs. Wright, 2 B. & P. 18, decide, that “a covenant is to be construed according to the intention of the parties.” What was the intention ? Clearly to do all acts proper to carry the award into effect; and omit all, which would deprive the other party of the benefit of the award. — Jacob’s L. D., Covenant; 3 Com. Dig. 257, 266-9. The form of the declaration is not reached by this general! demurrer.</p>

<p>This was an action of assumpsit on a note dated August 4th 1824, and executed by the. defendant to the plaintiffs.</p> <p>The general issue was pleaded, and closed to the court by agreement of parties. The defendant recovered his cost, and exceptions were filed, and allowed, to the decision of the county court,, upon which the action was brought up to this Court.</p> <p>It ap.pears.by the exceptions, that the defence relied upon was the want of consideration for the note. The proof was,, that the plaintiffs sued the defendant and one Gleason, before one Samuel Stanford, a justice of the peace, and recovered a judgement, and obtained execution upon the judgement, and delivered the same to an officer for collection; that Brown and Gleason applied for an appeal from said judgement, which was disallowed by the justice on some objection of the plaintiff. They then brought a suit of audita querela to set aside the judgement; after which the plaintiff and Brown agreed to settle the whole. The defendant gave this note, and gave a discharge of the suit of audi-ta querela ; and the plaintiff gave him a discharge from said judgement. Gleason not approving of this settlement, the audita: querela was prosecuted. The plaintiff made defence with his receipt from Brown; but that proved ineffectual; and the judgement of the justice was set aside.</p> <p>The question now presented was whether these facts furnished a defence to the note.</p> <p>Argument of the plaintiffs* counsel. — The only question for the consideration of the Court is, are die discharges of the judgement and audita querela a good and valuable consideration for the note. A compromise of a doubtful right is a good consideration for a promise. This is clear, and every day practiced. — 1 Bane, 125, a 43 ; do. 114, sec. 8. The giving up a suit, instituted to try a doubtful question, is a good consideration for a promise to paya stipulated sum. — 1 Chitty on con., 9-10 ; 5 B. & Aid. 117. A suspension or forbearance of a right is a good consideration for a promise.— 1 Swift, 189. A promise, in consideration of surceasing a suit, is good and valid. — 1 Swift-,. 190,. ‘Saits are not tobe presumed causeless, and the promise-to pay argues cause for the defendant’s stay of-proceedings. — Powel on for contracts,p. 346. These rules are founded in policy. It is the interest of community that there should be a compromise of suits, and an end of litigation. Benefit'to the defendant, or loss to the plaintiff, rs a good 'consideration for a promise. In this case the plaintiff gave the -defendant a discharge of the judgement re* covered against ht-fn ¡and Gleason. The exceptions being then recalled by audita querela could make no difference. It was the -same as though it had not been taken, out. The defendant, by -operation of said discharge, was released from his bonds given 'oft praying out the audita querela.• ■ It operated as a discharge of the original-cause of action. That action was settled root and branch. Not only that, but the suit -on the <aud.ka was compromised. The defendant and Gleason recovering-that judgement does not destroy the note. The judgement by the discharge was dead, in law. It was the same as no judgement-, for-it was satisfied. The original case of action "was satisfied and at an end. iiere was a -compromise of aright; a giving -upof a suit ? a suspension of a prosecution, and a surceasing of litigation.</p> <p>Argument of the defendant’s counsel. — 1. The consideration, for which the note in question was given, failed by the reversal of the judgement for the discharge of which the note was executed ? and a total failure of consideration is & good defence to a suit upon the note.</p> <p>2. The judgement discharged,and afterwards set aside by audi~ ta querela-, was -irregular -; the plaintiffs having induced the justice to refuse the defendants -in that case an appeal, to which they were by the statute entitled; and-, therefore, as between the parties, it was an irregular judgement.</p> <p>3. Where an irregular judgement -has been set aside, the -consequences, as it respects the parties to it, are the same as if n© judgement had ever existed. — Allen vs. Huntington e>t al-. 2 Aik. Rep. -249.</p> <p>4. A re versal, therefore, of that judgement, by audita querela, revived the-original-cause of action, aad -left Brown -liable to the plaintiff for a trespass.</p>

<p>All acknowledgement ofa debt, in terms which admit it to be due, removes the effect of the statute of limitations, notwithstanding the debtor assigns his poverty as a reason for not paying, or not giving a new note ; while he does not deny his liability.</p> <p>This principle applies to an action of debt on judgement.</p>

<p>A turnpike company are not responsible for the doings of a committee, appointed in their grant, in laying their road in a bad place, when a better place would have been more clearly within the location of the grant; unless the company or their agents used some means to induce the committee to lay the road as they did.</p> <p>Such road havingbeen accepted by tlie committee, appointed for that purpose by the Supreme Court, it- must be. presumed to have been originally'made of a proper width.and accordingto th^ requisitions of.the grants '</p> <p>Such company’s neglect to keep their road in repair, and their suffering itj to be fo/ years in a ruinous state and dangerousto travellers, is a sufficient cause for taking the forfeiture of their grant. So also is their placing their toll gate where they have no right by law to place it^ and keeping it there' for a considerable Ifcngth of timo.</p>

<p>A book account action lies to recover fees for plaintiff’s arguing a cause for defendant, upon sufficient proof that the services were performed, although no charge w£s made on any regular book of accounts, but on slips of paper ffled according to plaintiff’s custom in his professional business.</p>

<p>The defendant, John Mattocks, as administrator óf John Murray, heretofore brought his action against the orator upon a bond in the penal sum of $5,000,conditioned for the payment of $2,500, with interest, and dated December 1st, 1806, which action was,at the time of the trial of this case, still pending in court in the county of Caledonia. Mattocks also, as administrator, as aforesaid, heretofore brought his bill in chancery before this Court against Williams, praying for a decree of foreclosure of the equity of the orator in and to a large tract of land in the township of Jay, in the slate of Vermont; Williams having, on said 1st day of December, 1806, conveyed said large tract of land to Murray in his life time, by a mortgage deed, to secure to him the payment of the sums due upon said bond ; which bill in chancery was now pending before this Court. Since the pendency of the action on the bond, and the bill in chancery, Williams filed in this Court his cross bill, praying for a perpetual injunction upon the suit at law, and upon the bond and mortgage deed, and upon any action that might, at any time, be commenced or prosecuted upon either of them, and also praying for general relief. Mattocks answered the cross bill of Williams ; and his answer and his supplementary answer were traversed by Williams ; and the testimony was taken and published ; and the cross bill was set down for a hearing, and was heard at this present term. The solicitors for the parties agreed that the merits of all their controversies were fully presented to the Court on this hearing. The ground assumed by Williams, the orator, was, that he bought of Murray the same tract of land, and paid, at the time of purchase, fifteen hundred dollars, and gave said bond for the remaining purchase money, being $4,000 in the whole, and gave back the mortgage deed of the same land, to secure the payment of said money owing upon the bond ; and that Murray, gave to him, the orator, a quitclaim deed only, falsely and fraudulently representing, that he had power to make a good title to the lands, when, in fact, he had none at all. The particulars of the fraud charged in the transaction were, that Murray falsely and fraudulently represented to the orator, that one Jacob Watson, then late of the city, county and state of New-York, deceased, formerly owned said tract of land, and died seized of it; that Watson, before his decease, made and published his last will and testament, which had since been duly approved and confirmed ; in and by which will the said Watson, among other things therein contained, did authorize and fully empower his executors therein named, or such one of them as should qualify and act under the same, to sell and convey all his lands and other estate whatsoever and wheresoever, at and for such considerations or sums of money, as should be deemed adequate ; and that he the said Murray was sole acting exe.cutor of the last willofWatson, deceased; and that Williams, relying upon the representations of Murray, and believing the same tobe true, took the quit-claim deed, and made the payment, and gave the securities aforesaid ; whereas in truth and in fact said representations were not true ; that Watson did never own the said tract of land ; that Murray was not then sole acting executor of the will; and that Watson in and by said will gave no such authority to his sole acting executor to sell said lands ; and that no title whatever passed to Williams by the deed of Murray.</p> <p>The answers and the testimony are sufficiently noticed, in the arguments of the solicitors, and in the opinion of the chancellor, to be intelligible without further recital here.</p> <p>It may be mentioned here, that Murray's deed to Williams alluded to the will of Watson by an erroneous date, which, after all the testimony is in, becomes of no consequence whatever; and needs no recital of testimony or arguments.</p> <p>-Arguments for the orator. — The first thing, that arrests our attention in these proceedings, is the misrepresentations of Murray. The misrecital of the date of the will, perhaps, chancery would pass over; but the misrepresentation of the executor's powers, as such, is insufferable. The words of the will are, “ I give and demise unto John Murray, Edmund Prior, and Jacob F. Watson, and to their heirs and assigns forever, all my lands, be. “Item. I direct and appoint that my said executors and trustees, or the survivors or survivor of them, do in such manner as they shall judge best, sell and dispose of all of my lands,” &c. The deed recites that, “ whereas, Jacob Watson, in and by his last will and testament, did authorize and fully empower his executors therein named, or such of them as should qualify and act under the same, to sell and convey all his lands,” be. John Murray here assumes to act by virtue of an express power delegated to him by Jacob Watson’s will, and the probate of the same, and letters of administration. If the power assumed by him be not given by the will and letters of administration, nor either, then his acts by virtue of such power, are a nullity, and the deed void. But the power delegated by the will to act in the premises, is to the said Murray, Prior and J. F. Watson, trustees and executors, to their survivors or survivor, and not to his executors, or such of them as should qualify and act. Does it not, then, necessarily follow, that the doings of said Murray are void ? But, supposing this difficulty removed, there are others absolutely insurmountable. The jus accrescendi has not attached. The bill alleges, and the answer admits, that Edmund Prior is still living ; nor can this jus accrescendi attach as long as Prior and Watson have heirs ; because the trust is made to Murray, Prior and Watson, and to their, be. By what authority, then, can Murray assume to act alone, in discharging this trust? Not by the power given in the will. Not by the power given in the'letters testamentary. The will delegates a joint power to Murray, Prior and Watson, and to their survivors or survivor. Not a word as to power delegated to his executors, or such of them,as should prove the will, and act as such. The intention of the testator, expressed in this will, is to be perfected. The power, delegated in the will, is a joint power. If the testator’s intention was not that it should be jointly exercised, why was not the delegation of power in severalty ? If the testator intended that such of his executors as qualified should be clothed with this power, why did he not so express it ? It is most manifest, that, so long as any two of the .... , . , , trustees or executors were living,it was the intention oí the testate at no one should act solely, and independently of the other. But it does not appear that Prior and Watson refused the trust, or to act as executors. And, it Murray could deed under the power given in the will, Prior and Watson could each deed under the same power : and which would be the efficient deed ? But it is contended, that as this is a joint power and a joint trust, nothing whatever passes by the deed of Murray, Prior, one of the joint trustees and executors, living. For a sale by executors, under a power in the will, is void unless the same be by the whole number named therein. — 1 Co. Litt. 169 ; 3 Pick. 244, Sutton vs. Cole', 2 John. Chan. Ca. 19-20, Osgood vs. Franklin. The statute of Henry Pill, never attached in this state. In New York, they have a statute of similar import, which authorizes the acting executor to sell, in case of neglect or refusal of the rest of the executors to act. But the will of Jacob Watson and the letters testamentary in New York vested no power in, nor controll over,- the lands of the testator lying in this state. He could sustain no action for the same, without first proving the will here and taking letters testamentary. An executor or administrator appointed abroad has no authority in this state. — 1 Johns. Chan. C«. 156, Morrel vs. Dicky; 2 Co. Ldtt. 292 ; 5. ■ Co. 143, Russel’s case; do. 144, Middletown case; 1 Salk. 307 ; 2 Mass. Rep. 384, Sel. Men vs. Boylston ; Brayton’s Rep. 92, Lee vs. Havens. Administrators abroad cannot assign a mortgage. — 1 Mass. Rep. 81.</p> <p>The disposition of effects, left vacant by the owner, is wholly a matter of municipal regulation. This is the foundation of the power of courts of probate. Their jurisdiction is in rem,and in its nature local. It would be contrary to sound policy to admit a foreign administrator directly or indirectly to administer upon the estate of the deceased lying in this state. The statute of Vermont has pointed out the manner in which a will, probated abroad, shall be proved here. — Vt. Stat. p. 337, s. 23. If the probate abroad gives jurisdiction here, this statute is unnecessary, If courts here have jurisdiction, courts of foreign jurisdiction are necessarily excluded. If a citizen of New York, through the intervention of trustees, appointed by will, and a probate of the same in that state, can withdraw the effects of the testator, lying in this state, of which he died seized, the courts of probate, in this state, are necessarily ousted of jurisdiction. If John Murray did not derive power, by virtue of the will and letters testamentary, to deed said lands to the orator, the deed is a nullity, and the consideration of the bond in question has totally failed. Upon failure of consideration equity relieves.-3 P. W. 307; 1 Fonb. 366 ; 1 Ves 88 ; Co. Litt.a.384; Sugden’s Fend. 316; 18 Finer, 113.</p> <p>If the deed of Murray to Williams had been with the usual covenants, the covenants might have been a legal and equitable consideration for the bond. And, if Murray had been seized in fact of the lands in question, whether by right or wrong, something might have passed by the deed, and, in either case, equity might not relieve unless to prevent circuity of action. Relief in this case is not prayed for because of a defective title, but because there was no power in the executor to pass any title ; and no title, not even an inchoate one, has passed to the orator. If equity will not interfere, the orator is remediless.</p> <p>But there is another view of the subject. The bond set forth in the bill ’.was executed in 1806; the deed to Williams by Murray in 1807; the mortgage deed in 1808. The suits upon the bond and mortgage were commenced in 1828, more than twenty years afterwards ; and Watson’s estate, all this time insolvent.— Why this extraordinary delay? Why have not creditors, legatees, heirs, or somebody, looked into this business ? Six or seven thousand dollars are worth something to creditors, who are decreed a dividend. But the proceedings of the respondent, since the filing of the bill, give us a clue to this mystery. At the time this bill was filed there was no title of record, whatever, in Watson. Jay’s deed to him has been procured and recorded since. How does the orator know when this deed was executed ? The will of Watson has been procured to be probated in this State by Prior, as trustee and executor of Watson with Murray ; and a deed from Prior to the orator to be executed. Who knows the identity of this Prior; and where has he slept for thirty years, that he has not taken upon himself the trust and administration ? What induces him now to come forward, when Watson’s creditors and heirs are in their graves, to collect this bond and enforce this mortgage ? This bond and mortgage, if of validity, are assets of the estate of Jacob Watson, belong to his creditors and his heirs, whose legal representative Prior is, and do not belong to the estate of John Murray. Why, then, are not the suits in the name of Edmund Prior, and not in the name of John Mattocks ? Why has the orator had his property attached ? Why put to grep; trouble and expense, when, confessedly,he had no title whatever l . , ‘ , . What satisfactory answers can be given to these questions ?</p> <p>By force of the doctrine oí jus accrescendi, and the terms of the will of Watson, the whole estate and power to deed vested in Prior. He could have perfected a good and complete title, in law and equity, in any one, independent of Williams. Murray’s deed is a nullity, because he had no power to deed, but jointly with his co-trustees and executors j (all of whom were living at the date of his deed to Williams;) nor without first probating the will in this state. The whole defence rests upon the foundation, that Murray had the sole power to deed, given him by the will. The contract was made with that understanding, and, if Murray had not such power, the defence fails. Whatever power Murray had to deed was derived from the will. If the power, delegated by that, was not exercised in deeding, the deed is a nullity. So far from professing to exercise this power, Murray expressly abandons it, and sets up and recites a power, independent and distinct from the will. He cannot excuse himself by saying there was a mistake. He had the custody of the will. He undertook to recite it, and the power, given him by it, to deed. No such will as here recited is to be found j no such power, as set forth in the deed, is to be found in the will produced. What then is the result ? Why, that so much of the deed, as recites the will, and enumerates the powers given in it to Murray to deed, is sur-plusage, and to be expunged, in construing the deed. Erase this,, and the deed stands as the sole deed of Murray, inoperative and null. He sets his own hand to it; affixes his-own seal; and acknowledges it in his own name.</p> <p>But it is said, that the will offered gives power to Watson’s trustees and executors to deed, and that Murray was one of them ; and here is a mistake in writing the powers. Be it so. For that very reason the deed is void, and there is no remedy. Here is no latent ambiguity. No averments out of the deed can be received to add to or explain it. Here either is, or is not, such a will, as the one set forth in the deed. If there be not such a will, the deed is inoperative ; because Murray assumed powers which he had not. If there be such a will, the one offered is of no validity, as being executed anterior to the one cited in the deed. There is a manifest distinction in one’s applying for leave to correct their own mistakes, and being called upon by others to correct them. But even had the deed contained covenants of warranty, binding Murray in his individual capacity, the orator is entitled to relief. — -Parker vs. Parmalee, 20 Johns. R. 135. If the deed be inoperative, the grantee may recover back the purchase money.— Van Eps vs. Schenectady, 12 Johns. R. 436. Murray must have had the power to deed at the time of the agreement, or the deed is void. — ***** vs. Way, 11 Johns. R. 527. If there be no title, chancery will not lend aid to the party. The court will not incline to perfect a title after a lapse of many years. — 1 Mad. 348. There must be a title at the time ; for it would be inequitable and unjust to force one upon the orator after a number of years. — Woodcock vs. Rennet, 1 Cowen, 711.</p> <p>It was further contended that the circumstances of the case afforded no ‘equity for a decree of specific performance on the part of Williams : that there was no mutuality or reciprocity of rights and remedies, without which a specific performance would mot be decreed.</p> <p>Argument for the respondent. — The burden of complaint is, that Murray fraudulently represented to Williams that Watson •died seized of the lands ; that he, Murray, was empowered to sell ; that, relying on this, Williams bought by quit-claim ; but obtained no title, and ought not to pay.</p> <p>As the answer denies all fraud, and none is proved, nor any statement about title, except in the deed, Murray to Williams, it would seem, that the general principle, that a quit claim-deed, from its very nature and language, precludes all remedy, is a sufficient answer to this bill. But, to remove all doubt and colour of complaint or hardship, the defendant proceeds to show a perfect title in Williams. The charter vests the title in John Jay. The deed from John Jay and wife of 29 th of January, 1794, duly proved, conveys the same to Jacob Watson. The will of Jacob Watson authorizes his executors to sell; by virtue of which Murray, sole acting executor, sold to the plaintiff. If Murray had authority, under the will, to convey the title,without the co-executors joining in the deed, then Williams obtained a good title-But, suppose Murray could not alone pass the title; it is in proof, that Jacob F. Watson, one of the-executors, died before Jacob Watson. It cannot be pretended but the two survivors, Murray and Prior, conld deed, as no time to deed is limited by the will. A confirmation deed of Prior, of 27th of September, 1830, is mow produced, and offered to the orator,by the defendant. This, and the deed of Murray, perfect the title in Williams. If the deed of Murray is void, then the deed of Prior, as only surviving executor is good, as coming within the very wordsr-of the wilt-Defendant has caused the deeds, Jay to Watson, and Prior to Williams,, to be recorded in the town of Jay ; — and a copy of Watson’s will to be recorded in Orleans district, where the lands . , . he, according to statute, page 387 ; and then a copy ot said probate record to be recorded in the town of Jay. Thus the town records of Jay show complete evidence oí title in Williams.</p> <p>The only remaining question is, whether it is competent for the defendant to perfect an inchoate title after hill filed. Author - ities are abundant, that this may be done, and so is the strong reason of the case. — 1 Maddock, 437,- 439, 441 ; 2 Swift’s Dig. 93-4-5 ; 5 Cranch, 262, Hepburn vs. Jluld. This perfecting the title has relation back to the time of the purchase. — 2 Swift’s Dig. 93-4. If not so, it is sufficient in equity, that his title is now good. If Williams has sold part with covenants of title; this closes all breaches of his covenants. If one agrees to sell lands he has not, and afterwards acquires them, he shall be compelled to perform this agreement. — 1 Maddock, 389. If so — in case A advance B $100, on such agreement, and go into chancery to get it back, why not compel A to take the land, if B proves title and so desires !</p> <p>The defendant’s Solicitors further contend, 1 That Prior, the Only surviving executor or trustee ofWatson’s will, having recorded the will in Vermont, and executed a confirmation deed to Williams, which removes all doubts as to Williams’ title, Williams would be entitled to no relief. If the title was defective, there being no covenant nor fraud. And,</p> <p>2. That Williams, having never been disturbed in his possession of the land, the title being now confirmed, and he having sold many lots of the land, has certainlyno ground of complaint now: for vendor can buy in the title, even after action brought, and protect himself J and chancery will order a specific performance if orator seeking It can make title at the time of the hearing, though acquired after the Contract. — Boswell vs. Vaughan, Cro. JameS, 197; Medina vs.. Stoughton, 1 Salk. 210 ; Frost vs. Raymond, 2 Caines, 188 ; Bree vs. Holbeck, Doug. 654 ; Thompson vs. Miles, 1 Esp. Rep. 183 ; Sugden’s law of vendors, 250 ; Rigby vs. Smith & Boyden, 1 Chipman, 409; 1 Suift, 401 ; 3 Starkie’s Ev. 1614; Christman vs. Gardner, 5 Johns. Chan. Rep. 29; Grovener vs.Elmendorf, same, 79; Hepburn vs. Avid, 2 U. S. Condensed Rep. 247.</p>

This was an action of ejectment, brought up from the county court on a bill of exceptions, taken-and allowed, to certain decisions made on> the triah By these exceptions, it appears, the cause went to the jury upon the general issue ; and, that the plaintiff proved the defendants in possession of the premises at the time the action was commenced, and also produced and read to the jury, without objection, a mortgage deed of the premises, given him by one of the defendants to…

<p>This was an action of trespass for breaking and entering the plaintiffs close, and cutting down and carrying away sundry trees. At the trial in the county court, Prentiss, J. presiding, the plaintiff, after proving that the defendant, in the year 1827, entered upon the lot in question, and cut down and carried off several pine trees, produced in evidence a deed dated November 3, 1825, from Jonathan Hunt and others* heirs of Arad Hunt, conveying the lot to the plaintiff. He then proved that Arad Hunt, who owned and possessed said lot in his life time, died intestate in the year 1825, before the execution of said deed, leaving the plaintiff, and the several grantors mentioned in the deed, his heirs at law. The court decided* that the title, thus shown by the plaintiff, was not sufficient in law to maintain the action. And there being no evidence, that the plaintiff was in possession of the lot, either before, or at the time of, the alleged trespass, the jury were directed to return a verdict for the defendant* which, they did accordingly. '</p> <p>The plaintiff excepted to the charge of the court, and the cause was removed to this court on a motion for a new trial.</p>

This was an action of book account, in which judgement to account was rendered in the county court; the cause sent to auditors ; their report returned to said court in favor of the defendant; and judgement was rendered for the defendant on that report; to. which exceptions were taken by the plaintiff', and the cause brought to this Court, The auditors made a special report of the facts, which came up as a part of the record, and which was in substance as follows: That the…

<p>Presumption of payment, from lapse of time, cannot be claimed by a defendant on de^ raurrer to a bill in chancery.</p> <p>The defendant must demur to that part of the bill which claims a discovery, if he in* tends to object to it in argument.</p> <p>The statute of limitations does not rUn against an equity founded upon a subsisting trust, nor against an equity founded on a fraud, while the person against whom the equity is claimed keeps the fraud concealed from the party claiming the equity,</p> <p>ín such case a plea of the statute of limitations must be accompanied with an answer to the parts ofthe bill which charge such fraud or trust.</p> <p>tVhere a creditor extended an execution on his debtor’s lands which were encumbered with a mortgage’ to a third person ; and afterwards, on failure of the debtor to pay the amount due'on said mortgage, according to a decree of foreclosure made in the case, the cveditor paid the same fo the mortgagee, it was held,- on demurrer to a bill brought by the mortgagee of th’e levying creditor, of\vhom the creditor obtained the money, against the grantee ofthe debtor, to recover for the amountso paid,</p> <p>That the creditor need not be joined as orator, nor the debtor as respondent;</p> <p>That the payment of the money by the creditor to remove the incumbrance from the' lands levied on, was not a voluntary payment, especially, asm this case, When the lands were worth much more than the amount which had been so paid; and</p> <p>That there was eqnity in the bill. — In ibis case the levy of the execution had been decided to be void by reason of some irregularity in the proceedings.</p>

This was an action of assumpsit cm promissory note,for $499,16, dated August 24, 1829, and payable to bearer in six months from date. Plea, general issue.

This Was an action of debt upon a replevin bond. The defen - dants pleaded in bar an accord and satisfaction, to wit, the pay - ment and delivery to the plaintiff, before the commencement of this action, a certain pair of oxen, and certain goods described, &cc. which the plaintiff received in full satisfaction, &c. To this plea the plaintiff replied, that before Such accori], &c. to wit, on &c. he, for a valuable consideration, assigned said causo of action to one Roger…

The declaration, in this case, contained three counts. The defendant demurred specially, and the county court adjudged the declaration insufficient. The plaintiff filed exceptions to this decision, upon which the action was brought up to this Court. The demurrer was argued this term. The defendant’s counsel expected also to urge the sufficiency of a plea in abatement, pleaded in the county court, and overruled there.

This was an action of trover for a number of sheep, and was submitted to the jury on thegeneral issue. The plaintiff, to support her action, produced a written contract, by which the defendant acknowledged he had received the sheep in question, and was to keep them a certain period, and wash and shear them, and do up the wool, Sic. for sixty seven cents a head. The fleeces were received and indorsed on the contract.

This was an action of booh account which was sent to auditors from the county court, who returned their report, at the next term, in favor of the plaintiff. The defendant filed several exceptions to this report; yet it was accepted by the court, and judgement was rendered thereon. Exceptions were filed to that decision, upon which the cause came up to this Court.

<p>This was a writ of scire facias against the defendant, as bail of one Barney Smalley, This is the same case, in which a new set of pleadings were permitted by this Court several terms past, It seems that one Hidder served the original writ, as constable, and made return, that he had taken the present defendant as bail; but did not say, by his indorsing his ñamé on the back of the writ; nor did his name appear written there ; but the margin of the writ had been torn off at the fold, and was missing. The defendant pleaded three pleas in bar : the two first virtually denied he ever signed his name on the writ as bail. The third plea alleged a payment and settlement of the demand before judgement and execution, and the fraudulent judgement to charge defendant as bail. These pleas were traversed, and issues joined to the jury. The plaintiff offered the constable as a witness to prove, that the defendant did sign his name as bail, and that the name had been torn off. He was objected to as incompetent, and excluded by the court. But the plaintiff introduced other testimony tending to prove the same facts. The defendant also produced a receipt to prove the third plea, which was objected to, but admitted, The receipt was signed by one Charles Seaver; but there was testimony tending to show that he had a right to settle the first action, and sign such receipt. All these matters appear in a bill of exceptions allowed by the judges of the county court; to Which is attached a copy of said receipt. The defendant obtained a verdict; and the plaintiff brought the cause to this Courts tt was argued this term on said exceptions.</p> <p>Kimball, for the plaintiff. — Smalley, to have availed himself of the doings of Seaver, must first have proved his authority from Yeuren.~l Phil. Ev. 76 ; 3 Stark. Ev. 1085.</p> <p>The acts or declarations of Seaver, contained in the receipt, are wholly insufficient to prove his agency,or authority to do those acts. —-1 Phil. Ev» note a. 76.</p> <p>Where an execution is ptit into the hands of an officer to be collected in money, the receiving payment by him in other articles, is no satisfaction or discharge of the debt.— Codwise vs. Field, 9 Johns. Rep. 386.</p> <p>The receipt is not payment by its terms, unless certain de-rtiands therein named should be collected. This does not support the positive allegation of the plea. Hidder, the constable, ought to have been admitted to prove defendant’s name torn off the writ.</p> <p>Slarlavealh'er,for the defendant. — If the paper offered in evi~ dence has a tendency to prove that plaintiff settled the original suit after the service and before the return day, it is proper to go to the jury. The substance of the allegation is, that the plaintiff settled the suit with the principal, before the return day of the writ; and thereby discharged the bail. The fact is simply alleged, without vouching the receipt; and the receipt is used as mere evidence, Therefore, although the receipt describes two other small papers, which passed between the parties at the time of executing the receipt, and which, are not described in the plea, yet as the receipt has a tendency to prove the substance of the allegation, this variance is not material. — 3 StarJc. Ev. 1602-3, and in notes.</p> <p>As to the other exception,it is apprehended there can be no question. Hidder,the constable,serving the original writ, and who had in his return stated, that he had taken Henry S. Smalley for bail, had a direct interest in charging him as such, ssHenry S. Smalley,s name did not appear to be endorsed on the back of said original Writ. If the alleged bail be discharged, in consequence of his name’s not appearing on the back of the original writ, it casts the whole burden of the liability on the constable ; and if, by testifying in the case, he can charge the alleged bail, he thereby screens himself. His interest would be equal to that of the bail, at least ; and, therefore, he should not be permitted to testify. — -2 Stark. Ev. 744; 3 Dane’s Dig. 404-5-8 ; Swifts Ev. 54.</p>

<p>The history of this case appears in the following bill of exceptions, brought up from the county court, to wit : “ This was an action of ejectment for lands in Derby, being the second division lot, drawn to the original right of Abijah Hyde. The defendant pleaded the general issue, and the cause was submitted to the jury on the following testimony: — The plaiptiff, for the purpose of supporting the issue on his part, offered to read to the jury a deed, purporting to have been executed by David Norris, to John Lindsey, conditioned for the payment of certain notes therein mentioned ; and on said mortgage deed an assignment of all said Lindsey’s interest in said mortgage deed, to the plaintiff; and, in connexion therewith, a copy of said mortgage and assignment, from the records of lands in Derby, purporting to have been received for record, November 11, 1826, and to have been recorded November 31, 1829; and also two of the notes mentioned in the condition of said mortgage,indorsed to the plaintiff, without recourse, by John Lindsey. To the reading of which several papers to the jury the defendant objected ; but the court overruled the objection, and suffered the aforesaid papers to go to the jury : all of which said papers are hereby made a part of this case. The defendant acknowledged himself to have been in possession of the land in questionat the date of the plaintiff’s writ, and that he claimed to hold the same by a title derived from David Norris. The defendant offered to read to the jury a deed of warranty from said David Norris to the defendant of thé land in question, purporting to have been recorded in the town clerk’s office in Derby, on the 25th of March, 1828. The defendant also offered Lemuel Richmond, town clerk of said Derby, who testified that he recorded the mortgage deed, and assignment aforesaid, on the day the certificate on said copy bore date ; that the said mortgage deed and assignment came into his hands from a former town clerk, in a fife of mortgage deeds, wherein it had been usual to keep mortgages, that were lodged for record. The plaintiff then offered testimony tending to show, that, abopt the time of the date of the above mentioned mortgage deed, the defendant had knowledge of the existence of the same, but without knowing how large a portion of the consideration, paid by Norris for the land in question, was secured by said mortgage deed from Norris to Lindsey ; that defendant was informed, at the time of receiving said knowledge, that the mortgage deed was for the security of only a part of the price of said land. The testimony here closed. The jury returned a verdict for the plaintiff.”</p> <p>The cause was now argued on these exceptions.</p> <p>Argument for the defendant.- — We contend, that the mortgagee, before foreclosure, or before condition broken, could not, by assignment, convey the legal interest in the mortgaged premises; without which the present plaintifF cannot maintain a suit at law to recover the possession. Because, by the statute of this state, the legal right of possession to the mortgaged premises is secured to the mortgagor, until condition broken. See statute, page 96. We consider the interest of the mortgagee in this state, as merely contingent; which does not come within the idea of a present legal estate in the lands. Having no right of possession until after condition broken, it is, at most, only a possibility coupled with an interest, which is to lake effect “in future and not assignable at law. The mortgagor does not hold as tenant to the mortgagee, but strictly in his own right. The interest of the mortgagee, then, ¡s as definitely contingent, as that of one to an executory devise 5 or the/its accrescendi of a joint tenant; or the heir’s hope of inheriting ; which interests are assignable only in equity. — See IQ Coke, 50, a. ; Co. IÁtt. 264, 6, 265, a. note, 212 ; 1 Vesey, 390,409 ; 3 Vesey, 391; 7 T. Rep. 588 ; l Mod. Chan. 549 ; 2 Cruise Dig. 298; Rem. tit. d. 15, 20, 21, 22, 23; 2 Bl. Com. 291, and Chittfs notes and authorities; Bac. Abr. title assignment, A,</p> <p>A mortgage is a personal security for a debt, “ a chose in action and the mortgagee cannot,before foreclosure, exercise any acts of ownership, that will attach on the estate. He has no interest in the lands, that can be taken on execution, nor any estate,that will descend to his representatives. — 2 Sioft’s Dig. 170, If then, as we contend, the mortgagee, before the law day is past, has no present interest, and, after the law day, a mere right of action for a condition broken, and that right liable to be defeated by payment of the mortgage money, it follows, that his assignee has no interest, which is the subject of this action ; and can nq more'maintain ejectment in his own name, upon the assignment of the deed, than he could on an indorsement of the notes, and a delivery of the deed ; which will not be pretended.' But, admitting, that the legal title to the premises in question can pass from the mortgagee by assignment, we maintain, that it must be by deed in due form of law. The writing upon the back of the mortgage deed, purporting to be an assignment, is insufficient for the purpose of vesting in Stewart any legal title to the mortgaged premises ; for that it is wanting in all the essential requisites of a deed. It will be observed, thatthe pretended assignment contains no consideration expressed, without which a deed is of no effect, and enures only to the benefit of the grantor himself. — 2 Bl. Com. 296. The instrument is ineffectual, because it contains no description of estate ; which is necessary in order to determine what title, or interest, passes by the deed. — 2 Bl. Com. 298. If Stewart, by an intrument as informal, and as inoperative, as the one upon the mortgage deed, obtained directly from Norris, the original proprietor, could not be said to have the better title, as against Thompson, who holds by a regular deed under Norris, it is not easy to be perceived, how he can maintain his action upon the strength of such a writing from the mortgagee of Norris. Lastly, the assignment does not pass any estate in the land ; for it contains no essential words of conveyance.</p> <p>The next question, raised by the bill of exceptions, is, under all the circumstances of the case, which of the parties has priority of title. And here we contend, thatthe mortgage deed from Norris to Lindsey, being on file in the office of the town clerk of Derby, and there remaining for more than three years, before it was recorded, did not constitute a “ recording at length,” within the meaning of the statute, earlier than the time of its being actually spread upon the record. The jury should have been instructed, that, from the long time the deed had been in the office of the town clerk, and not recorded, and no attempt shown to compel the clerk to record it, and no request to him so to do, and no excuse shown for the delay, they w"re at liberty to infer, that such deed was not originally left for record, and so, void, as against a subsequent “ bona fide” purchaser, whose deed was first recorded. We conclude that the filing of a deed in the office of a town clerk is not what is contemplated by the statute, in the words “ recording at length.” Nor can any such construction be deduced from the language of the statute. If such a doctrine should obtain, we Conceive, that the very evils-which the statute meant to remedy would be multiplied, and the doctrine-of “ caveat emptor” would extend to- the imposing of such- watchfulness upon every purchaser, that ordinary ability would be inadequate- to perform. The Connecticut- statute, upon the same subject,, is copied almost verbatim ; except that clause, which enacts, that the record shall bear the date of the minute upon the deed, which the clerk is there required to make, on receiving k ; and which, in our statute, is entirely omitted,and not through inadvertence, but intentionally, as is evident. The filing of a deed under ©u-r statute we consider an anomaly ; for the deed is no part of the record of the office; nor has the law made it so by adoption : it is not like the writ in the files of a court of record; but strictly private property, and, ia point of fact, is no more recorded when ‘filed,’ as it is termed, than if it had been lodged in the clerk’s private desk, with a minute in his memorandum book, that the grantee wished it to be recorded. Had our legislature considered the lodging of a deed in the office of a town clerk a sufficient recording, no provision would have been made for towns’ liability for the neglect of their clerks ; or for keeping books of records of deeds, or for clerks giving bonds for the faithful discharge of their duty. In short, we deem it clearly to be inferred from the statute upon the subject, that the grantee, who does not see to jt, that his deed is actually put upon the record, in a reasonable time, must be postponed to a subsequent bona fide purchaser, whose deed is first recorded. Such seems to be the doctrine in those states, where no time is specified for recording deeds. — 4 Kenfs Com. 449 ; Seers vs., Hawley, 2 Con. Rep. 467 ; 1 Swijfs Dig. 125. If we are-correct in this position, then we say, the notice in fact attempted to be shown, under all the cire-umstances, is insufficient to postpone defendant’s deed; and the jury should have been so instructed. There was no evidence that defendant ever knew the contents of Norris’ deed to Lindsey. The only knowledge, that Thompson was proved to have had of the deed',was that,at thetime of Norris’ purchasing the land in question, he secured the payment of the-price by mortgage. Thompson had a right, then, from tho lapse of time, the mortgage not being recorded, and Norris remaining in the undisturbed possession of the premises, to presume, that the mortgage deed had been cancelled, the condition being performed.-JVorcroM vs. Widgery, 2 Mass. Rep. 506 ; Farns-worth vs. Child, 4 Mass. Rep. 637. There must be actual no-lice of a sum specified. — Frost vs. Brehnan, Í Johns, -nan. Rep. 281 ■; 18 Johns. Rep. 544. If a mortgage for ‡3000 is, by mistake,registéred $300, it is good for that sum only as against a subsequent purchaser. — Ibid.</p> <p>The plaintiff's counsel contra. — I. The plaintiff contends, that the assignee of the mortgagee may maintain ejectment against any person in possession under a title derived irom [the mortgagor subsequently to the execution of the mortgage.</p> <p>1. By the common law the mortgagee may maintain ejectment at any time against the mortgagor for the recovery of the mortgaged premises, without notice to quit, or any other act whatever. 2 Swift's Big. 167-8; Doug. Rep. 21, Kcech vs. Hall j 1 Aik. Rep. 329, Atkinson et al. vs. Burt et al. ; 4 Kent's Com. 148-9, and cases there cited. Although our statute gives the mortgagor the right of possession against the mortgagee until condition broken ; yet, when that happens, both parties are restored to the same condition in which they stood at common 'law. 2. Aik. Rep. 410, Munroe vs. Walbridge et áL</p> <p>2. Both parties have but one estate, and their rights and interests are compatible with each other. — 2 Peter’s Cond.Rep. 155, Higginson vs. Mein. The possession óf the mortgagor is, in contemplation of law, the possession of the mortgagee, so that each one possesses an estate in the mortgaged premises, which he may legally transfer, notwithstanding the law relating to the sale of lands holden adversely. — 2 Swift's Dig. 186,170; 2 Ailc. Rep. 410, Munroe vs. Walbridge etal.</p> <p>3. The grantee or assignee of the mortgagor, receiving his title after the execution of the mortgage, stands k the place of the mortgagor, and holds the same estate in the mortgaged premises, subject to the same liabilities, and entitled to the same equity of redemption. — 2 Swift’s Dig. 183-4, 1'66, 179 ; Keech vs. Ilall, supra ; 4 Kent's Com. 15l. 156. And so of the assignee of the mortgagee, mutatis mutandis. — 2 Swift's Dig. 1S1-2.</p> <p>4. So that the plaintiff in this suit, being the assignee of the mortgagee,and he only, may maintain ejectment against the defendant, the grantee of the mortgagor, for the recovery of the mortgaged premises, in the same manner that the mortgagee himself could have done against the mortgagor. — Thunder vs. Bel' cher, 3 East’s Rep. 449 ; Keech vs. Hall, supra > 1 Salk. Rep. 345, Smartle vs. Williams j Dane’s Dig. 184. &e.</p> <p>The mortgage deed was received for record long before the defendant’s deed was executed, and, therefore, sufficiently recorded to bold the lands transferred. For, when a recording officer has received an instrument for record, it is,in contemplation of the law, considered as recorded, although the manual labor of actually spreading it upon the record has not been performed j (Marbury vs. Madison, 1 Crunch Rep. 137, reported in Peters’ Cond. Rep. 267 ;) and,when entered upon record, it has the effect by relation from the time when it was received for record. Consequently, a subsequent purchaser, without notice, cannot, by procuring his deed to be first entered at length upon the book of records, obtain priority of title. — 4 Dane’s Dig. 95, sec. 19.</p> <p>III. The defendant’s title, so faras the plaintiff is concerned, is fraudulent and void, for he knew of the existence of the mortgage, long before receiving his deed. And a purchaser of real estate, who, at the time of purchasing,knew of a prior unrecorded deed of the same lands, cannot, by procuring his deed to be first recorded, hold the estate against that prior deed. — 4 Kent’s Com. 163,448; 1 Swift’s Dig. 125 ; 1 D. Chip. Rep. 49, Ludlow vs. Gill; do. 315, Ramey vs. Currier et al. j 2 Vt. Rep. 191, Dixon vs. Parmelee ; 2 do. 546, Rublee vs. Mead.</p> <p>IV. Roth parties claim title under David Norris, and his title cannot be disputed by either of them. — Bush vs. Whitney, 1 D. Chip. Rep. 369 •, do. 176, Down and Eddy vs. Bean.</p> <p>V. The assignment of the mortgage is valid, and conveys to the plaintiff all the estate which John Lindsey had in the mortgaged premises. The assignment reads as follows : “ Know all K men by these presents, that I, John Lindsey, of Derby, in the “ county of Orleans, and slate of Vermont, for, and in full consid- “ erntion, received to my full satisfaction of Horace Stewart, oí “ said Derby, do hereby quit and assign over to the said Horace, H his heirs and assigns forever, all the right, title and interest, “ which I, the said John Lidsey, have in, or to, the within mort-K gage deed. In witness whereof I have hereunto set my hand “ and' seal, this 10th day of March, A. D. 1828.” The assignment was, at the same time, signed, sealed, witnessed, acknowledged, and, some time after, recorded, agreeably to the requirements of the statute laws of this state.</p> <p>1. A deed without consideration is good between the parties, and passes the legal estate. — 1 Swift’s Dig. 121 ; 4 Kent’s Corn. 453. in this case,the rights of the defendant are not affected by the assignment of the mortgage, but by the mortgage itself: of course, there can be no equity in his attempt to defeat the assignment. Besides, no specific consideration need be named in a deed. The expression, “ for value received,” is sufficient evidence of consider.ation to supporta contract or deed.-l Vi.Rep. 247, Lampson vs. Barret ; 7 Johns. Rep. 321 ; 3 do. 484; 4 Kent’s Com. 454. In this assignment, there is quite as much acknowledgement of a consideration received, as the words “for value received” express ; and it is believed, that, in the assignment of a mortgage, as is the case in the assignment of a lease, no consideration is necessary to be expressed. — Woodfall, 255.</p> <p>2. Lindsey’s assignment of all his right, title and interest, is a good conveyance of whatever estate he had in the premises, conveyed in the mortgage ; and, the assignment being made on the back of the mortgage deed, and particularly referring to the estate which he had therein, renders the description, and interest, sufficiently certain. — Shep. Touch, 98; 1 Swift’s Dig. 235,</p> <p>3. It is believed, that the assignment of all the right, title and interest, which he had in, or to, the mortgage deed, conveys whatever estate he had in the premises conveyed to him by virtue of that mortgage deed. All the right, &.C., which he had to the mortgage deed, might be a right to the possession of it, as a muniment, affording evidence of his title to the lands conveyed thereby : but all the right, title, and interest, which he had in the mortgage deed, was the title itself to the lands and his estate therein, and not the evidence of it. He could have no other possible interest in the deed,but his claim to the premises conveyed. It has the same effect as if written, all the right, title and interest conveyed to me by said mortgage deed — contained in said mortgage deed — described in said mertgage deed — or conveyed to me by virtue of said mortgage deed. The authorities, hereinafter cited, fully sanction this construction. Courts of justice are to construe the words of a deed so as to effect the intention of the parties, if by law it may be done ; and not to destroy the deed.— Cowp. Rep. 714, Pugh xs. Duke of Leeds ; do. 597, Goodtitlev s. Bailey; Willes’Rep.332,Parkhurst vs.Smith', Doug.Rep.382,Bacheetal. vs. Proctor; Shep. Touch. 83-6-7 ; 1 Salk. Rep. 325, Wyatvs. Aland; 1 Swift’s Dig. 222, rule 1 ; 224, rule 7; 229, rule 27 ; 2 Com. Con. 533, et seq.; 2 Bl. Com. 379 ; 1 Pothier, 48, and notes; Vattel, 318; 2 Vt.Rep. 56-71 Mass. Rep. 219. The common intention of parties ought to be sought, and no1' ^ie grammaiical sense of the words. — 2 Bl. Com. 379 ; Í Swift's Dig. 223, rule 3 ; Shep, Touch. 78. The obvious in-tendon of the parties, collected from the whole transaction, was, to trans^er t0 lhe plaintiff what lien Lindsey had on the mortgaged estate, and this is supported by the fact that there could have been no possible object in assigning the deed only ■, for the notes had been indorsed over, and oi course transferred ; and the deed could not operate to transfer any thing but the land. This is the inevitable conclusion, unless we suppose two intelligent men to be engaged in solemn mockery, and that, too, when their interests required them to perform something obligatory. Another rule of construction, decisive in this case, is, that where there is room for construction, a deed shall be construed most strongly against the grantor. — 2 Bl. Com. 280; Bowel on Con. 237-8 ; 2 Vt. Rep. 416-17 ; 2 Com. Con, 536; 1 Swift's Dig. 234, rule 51 ; Shep. Touch. 87-8. Lindsey assigned an estate in fee in the deed, or else in the lands conveyed by the deed. To allow this assignment to operate most strongly against Lindsey, and transfer the mortgaged premises, will do complete justice to all the parties concerned. Such has been the construction of a similar assignment, by this Court, in the case of Wright vs. Parker et al. (2 Aik. Rep. 212) sitting as a court of chancery. The rules of construing contracts are the same both in equity and in law.— Doug. Rep. 272, Hotham vs. East Ind. Co. ; 3 Bl. Com. 434. Consequently this assignment must be supported here or no where. After all, the Court will look into the case, and see that it is not an action brought solely to try the title to the land ; but its whole object is to enforce payment of the notes mentioned in the mortgage. All have been paid but two, and the mortgage never covered all the purchase rnoiiey. The defendant purchased the equity of redemption, knowing these facts, and expects to redeem, unless he can defeat the lien on the land. It is believed, substantial justice has been done to the parties, and the Court will not grant a new trial in such a case, although what the judge decided tobe law, upon which the verdict was founded, may be doubtful. — Brayton's Rep. 169, Rogers vs. Page etal.</p>

<p>Where no sum is mentioned in the minutes ofa recognizance upon a writ, or where the name of the person recognized is omitted, the Court have no power to amend the defect.</p> <p>But, in a case where the sum in which the surety was bound was omitted in the minutes of the recognizance, and the defendant pleaded the defect in abatement, and the court, without rendering judgement on the plea in abatement, allowed an amendment, on motion of the plaintiff, it was held, that, if the defendant did not mean to submit to the amendment, he should have filed his exceptions stating the motion to amend, and the decision of the court upon it: and not having done so, it was considered that he had acquiesced in the amendment.</p>

<p>This was an action of assumpsit, in which the plaintiff declared’ against the defendant for money had and received by him to the plaintiff’s use. From the particulars of the plaintiff’s demand filed in writing, and from the proof offered in the case, it appeared that the plaimifi’s action was founded on the second section of the act to prevent usury, and was brought to recover the sutn of $h‘i, received by the defendant of one Zadock Wheeler " J 4 contrary to the act,.and for which Wheeler had not sued within one year thereafter. The county court, without going into the merits, dismissed the action, on the motion of the defendant, because there was no special minute in writing, on the origina! writ, of the day, month, and year, when the writ was signed. The cause was removed to this Court on exceptions taken to the decision by the plaintiff, and allowed by the court below.</p> <p>1. The plaintiff contends that the case does not come within the statute.</p> <p>In the statute against usury (p. 163, sec. 2) the language is, “ and in case the person or persons so paying,*’ &.c., “ shall not commence his suit,” &c., “ then it shall be lawful for any person to sue for,” &c., “ in manner aforesaid,” &c.</p> <p>In the statute relating to the limitation oftsuits, (p. 288, sec. 1,) the language is, that all actions, &c. brought for any forfeiture upon any penal statute, &c. the benefit whereof shall be limited in whole or in part to the person or persons who shall inform, &sc. The language in the 5th section is, “when any action, &c., shall be brought, &c., in any of the cases mentioned in the preceding sections, the clerk shall make a minute, 'fee.</p> <p>In the explanatory act of 1S08, (p, 292,) the language is, that the 1st section of the act aforesaid shall not extend to any case where the remedy is given to the party aggrieveá, &c. In the statute against usury the action is given to the party injured, although upon a certain condition k is given to others. The case is, therefore, taken out of the statute by the act of 1808.</p> <p>2. The action is not brought upon, nor was it necessary to bring it upon, the statute. So far as the statute relates to the borrower, it is declaratory of the common law. As to the right of any other person, it creates the right to sue, and gives the remedy. The plaintiff calls to his aid the statute in support of his action, just as he would the common law, if be bad a remedy at common law. Many of the acts imposing .penalties direct the action to he founded on the statute ; in other words, to be brought upon it,and when this is uot the case it is unnecessary to count upon the statute. See statute more effectually to prevent trespasses, fp.280, sec. 1, 5,6.)</p> <p>3. This action is not brought to recover a forfeiture or penalty, •nor is the statute penal. Penal laws require the offenders to part with property,or money,which they have not received gratuitously from others. Whereas,the act under consideration simply requires the dc-fendant to refund the amount he has received,over and above what belongs to him, and which, in equity and good conscience, he cannot retain. It requires him to make no sacrifice of his own, but merely to restore what belongs to another. The common law which compels a man to refund what he has obtained by fraud or mistake may with equal propriety be termed penal. It can make no difference whether the property be restored to the person who has parted with it, or paid to a stranger. The eflect is the same upon the defendant. The liability operates as a penalty or not, according to its effect upon the person liable. In this case the defendant is punished neither more nor less on account of the money’s being received by a third person.</p> <p>Two questions may be raised in this case.</p> <p>1. Is the statute against usury, or so much of it as forms the foundation of this action, a penal statute ?</p> <p>2. If so, does this ease come within the fifth section of the statute of limitations ?</p> <p>1. Statutes are penal which give a right of action lor a breach of them. Remedial, when the sum to be recovered is intended as a compensation of the party aggrieved for the money or injury. Or when an action is given to a person other than the party aggrieved, as a means of enforcing the statute. Or remedial and penal,as when an action is given to a party aggrieved ; but he is not limited in the sum to be recovered to the amount of the injury sustained. So far as the sum recovered exceeds a just compensation for the private injury,it is a penalty.--Esp. on penal actions, 1,2, 5, 7.</p> <p>According to the above limitations, the first clause of the 2d section of our statute against usury is remedial, and the second clause of the same section is purely penal.— Comp. Laws, p. 1G3: The former gives to the party aggrieved an action, (if sued within one year,) to recover back usurious interest as a compensation for the injury he has suffered fora violation of such statute. While the latter, if such action be not brought by the injured party, or be discontinued, Sic., gives to a common informer by the description of.“ any other person or persons,” a right to sue within one year after the expiration of the first year, and recover the said excess,or usurious interest, or a sum equal thereto : and this action is given solely as a means of enforcing the said statute, by punishing the violation of it. There is no indebtedness, no moral or legal obligation on the part of the lender, to the person who sues under this second clause, independently of a positive statute; the action is founded on a principle of public policy. This is the very definition of a penal action. To constitute a penalty it is not necessary that the sum to be recovered should be ascertained and found by the statute. It is frequently the single, double, or treble value of the property which is the subject matter of the transaction on which the suit is grounded, or of the pecuniary loss which the party aggrieved is supposed to have sustained. There are many instances of this kind in our own statutes. See sections 7, 9, 10,11, and 12, of the act in relation to injerior crimes; also 2d section of the act to prevent horse racing, Comp. Laws, 226-7 — 8, and 273 ; the third section of the act relating to pounds, estrays, lost goods, passed November 6, 1806, (p. 456.) The fifth section of 37 Hen. VIH. against usury, by which the treble value first is forfeited ; the fifth section of 13 Eliz. by which so much as shall be reserved above legal interest, is forfeited ; and the first section of 12 Anne, which imposes a forfeiture of treble value, &c., give the forfeitures or a part of them, to any person who shall sue for the same, and are the same in principle as the clause of our statute now under consideration ; and the English books uniformly speak of actions upon these statutes as penal actions. See Goff vs. Pepperwell’, 2 Term Rep. 707.</p> <p>2. There can be no doubt that this case is subject to the regulations of the 5th section of the statute of limitations. It is clearly comprehended in the first section, and is not included in, or affected by, the explanatory act of 1808.— Comp. Laws, 288-9, and 292, no. 4. In the words of the 1st section of the statute of 1797, it is a case in which the benefit of the forfeiture is limited in whole (or in part) to the person, &c. “ who shall inform and prosecute for the same.” By the second section of the statute of usury, the whole penalty, or sum to be recovered,is, upon a certain contingency,given to a common informer. The sum to be demanded by the action does not depend upon this contingency,but merely the right to sue,and that cannot accrue until the expiration of one year after paying the usurious interest, and no action brought or prosecuted by the borrower, a party aggrieved.</p>

This was a bill in chancery brought by Uzal Pierson, jun. against Guy Catlin and Edward Pierson.

This was an action of ejectment for a small piece of land lying in tbe village of Burlington, with a printing office standing thereon. Plea, not guilty.

This was ejectment for a lot of land in Charleston. The plaintiff gave in evidence a deed of the premises demanded from Oliver Phelps to Noah Smith and Israel Smith, dated April 22d, 1797, and a deed of the same from said Smiths to himself; both of which deeds had been on record for many years.

The orator, as one of the heirs ~t law to the late `Gov. Moses Robinson, preferred his bill against the administrator of the estate of the late Moses Robinson, Jun., setting forth in substance the following facts :-That on the 7th day of July A. D. 1786, Mo-~esRobinson,jun., having attained l~is full ilge of twenty-one years, and being desirous to be advanced and set up in life, applied to his father, the said Moses Robinson, sen. and requested that he would then advance to…

This was an action of assumpsit, and the declaration contained several counts setting forth in substance — That on the 28th day of March, 1828, one Avara Gilman contracted to purchase of the plaintiff a pair of horses at the price of $200, on a credit of sixty days ; the plaintiff to, have Gilman’s note and the guarantee of some other responsible person — That the note was accordingly executed'and delivered, but the delivery of the horses was not to be made,nor the sale to…

This was an action of trespass for taking and carrying away a quantity of sheep skins and goat skins. Plea, not guilty.

This was an action on the case for erecting a dam across a stream in Huntington, called Huntington river, and flowing tlie water back on the plaintiff’s land. By the agreement of the parties, and order of court, the cause was submitted to the determination of a referee, who made a report in favor of the defendants. The plaintiff filed his exceptions to the report, but the court accepted it, and rendered judgement for the defendants to recover their costs.

This was an action of debt on a bond of recognisance made and entered into by the defendant in case of an appeal from a judgement rendered by a justice ©f the peace in an action in favor of the ’plaintiff against one Danforth Ainsworth.

This was an action of debt on ajudgement rendered by a justice of the peace, on the confession of the defendant, for $563,50, and there was endorsed on the record by the plaintiff’s attorney $533,86. The suit was brought originally to the county court after the endorsement had been made. No mention was made in the declaration of the endorsement, but the judgement was declared on as though no payment had been made thereon.

This was an audita querela brought to vacate a judgement rendered by a justice of the peace irrfavorof John Stearns vs. James Foster.

This was a petition for a new trial complaining of error in this Court in affirming a judgement of the county court in the case of Gordon’s administrator vs. Beardsley. The original cause had been tried in the county court at its September term, 1827, when a verdict was returned for the plaintiff.

This case came before the Court on a report of auditors in an action on look account.

This was an application to the Court for a writ of mandamus against the commissioners of jail delivery of Addison county to direct them to issue notice,and to proceed and examine thepetitioner, and if found to be a fit subject for the benefit of the act provided for poor debtors,to administer to him the oath in such cases prescribed.

This case came before the Court on objections filed to an auditor’s report in an action on look.account. It appeared from the report that the plaintiff had charged in his account, among other things, ten dollars for the use and occupation of land, which he claimed to have allowed him with the other part of his account. The defendant presented no account whatever.

This was an audita querela, brought to set aside an execution issued on a judgement recovered against the plaintiffs by the defendant for the sum of $,'2043,48.

This was an appeal from the determination of commissioners. In the county court, to which the appeal was taken, the appellee declared upon a promissory note, dated May 21st, 1825, for the sum of $613, payable November 21st, 1826, executed by Jaaza-niah Barrett, jun. and the intestate, jointly and severally, to the appellee. On the trial it appeared that the note was executed under the following circumstances.

This was an action of escape against the sheriff of the county of Windham.

This was an information by the state attorney, alleging, “ That Daniel Wheeler, of &c. on fee. one two years old steer, of a red colour, of the value of twenty dollars, of the goods and chattels of one Ebenezer Davis, of &c. in a certain field belonging to one Simeon Morse, of &c., with force and arms, feloniously and wil-fully, maliciously, mischieveously and wickedly, then and there did kill.” There was a second count setting forth the offence as in the first, except that…

<p>This was an appeal from an order of removal of one Isaac Carrier, a pauper, from the town of Reading to the town of Weathersfield. It appeared that the pauper had, previous to the first day of December, 1803, gained a settlement in Weaihersfield, and that about that time he went to reside in Reading, and had gained a settlement there, unless he was-prevented from gaining such settlement by a warning, of which the following is a copy :</p> <p>“ State of Vermont, ‘ ) To either constable of Reading, in</p> <p>“Windsor county, ss. ) the county of Windsor — Greeting.</p> <p>“ You are hereby required to summon Isaac Carrier, Polly “ Carrier, Green Carrier, Amos Carrier and Prudence Steward, “ now residing in Reading, to depart said town.' Hereof fail not, “ but of this precept, and your doings herein, due return make “ according to law. Given under our hands at Reading this 23d “ day of December, A. D. 1803.</p> <p>“ Elias Jones, “ William Howard > “ Thos, JJrown,jr.,-)</p> <p>Select men of Reading.”</p> <p>“ State of Vermont, )</p> <p>“ Windsor county, ss. j Reading, January 4, 1804.</p> <p>“ This day served this precept by leaving a true and attested “ copy of this writ with my return thereon with the within named “ persons.</p> <p>Elisha Bigelow, constable.”</p> <p>The county court rendered judgement that the pauper was unduly removed. The town of Reading excepted to the decision and the case was thereupon reserved for the opinion of this Court.</p> <p>1. The mode of service is prescribed. — 1 Stat. ( Tol. Ed.)p. 4Ó0 ; and St at. (Slade’s Ed.) p. 64, ch. 7, $.26. The officer has returned, that he has performed his duty, in the very language, in substance, in which the duty is prescribed, as appears by the following collocation.</p> <p>Statute. — The precept shallbe served on the defendant or defendants, Officer.-1 this day served this precept by delivering him, her, or them a true and attested copy by leaving with the within named persons a true and attested copy of said writ, with the officer’s return thereon. of said writ, with my return thereon.</p> <p>2. The truth of the return is possible.</p> <p>3. If any thing is to be supplied by intendment, it is as necessary for the rule of conduct, as for the history or return of it. If, by intendment, the language of the statute is to be understood to require a separate copy for each person, by the same intendment, the same language in the return must be understood to import that a separate copy was left with each person.</p> <p>4. The sufficiency of this return, under this statute, cannot be avoided, but by resorting to conjecture, where nothing is left to conjecture ; and that conjecture must be against the grammatical and fair import of the language. Who are “ the within named persons 9” Surely not one or two, but all of them. And who are all, but each distributively ? Then all have had “ a copy” —and if all, then each ; or the return is false. But as the return is possible, it cannot be adjudged to be false and void from impossibility.</p> <p>5. This process is not penal, and does not affect the person of the pauper. He is not bound to obey the precept, and he is as secure of his maintenance with this process against him as without it. It is a mere municipal regulation. JYotice, to other towns, of the intention of a town to which a citizen removes, touching his future maintenance, in case of misfortune, is all that the legislature contemplated by the act providing for this process. When once that intention is fairly and substantially manifested by the record of the town, every object of the law is satisfied. To overthrow the acts of a town, which are done in good faith, and to a certainty to a common intent, on the ground of technical niceties, bordering on quibble,is avoiding, in effect, every beneficial object of the legislature in passing the law, and rendering it a source of vexatious litigation to the people. It is respectfully submitted, therefore, whether the courts have not already gone jfar enough,if not too far,in avoiding these notices on technical grounds.</p> <p>6. It is notorious that many of these returns are in this form.</p> <p>7. I am unable to discern, from any reported case, that this Court has ever gone so far as would be necessary to overthrow this return on technical grounds.</p> <p>The question will turn upon the service of the warning. The return states, “ I this day served this precept by leaving a true and attested copy of this writ with my return thereon, with the within named persons.” It has been uniformly decided in this Court, that the statute must be strictly pursued in the service of a warning-out process. — Townsend vs. Athens, 1 Fit. Rep. 284.</p> <p>1. It does not appear upon whom the precept was served : the return does not state. The within named persons, are all the persons named,including the select men.</p> <p>2. The service would not be good unless a summons was delivered to each of the paupers within named. One summons could not be delivered to each and all named.</p> <p>3. The officer’s return must show that he left his copy with the persons with whom he ought to leave it. — Townsend vs. Athens,</p> <p>] Vt. Rep. 286. Nothing can be supplied by parol to make the return good. — 2 Aik. Rep. 272-5-6.</p>

<p>Where A, an infant, a short time before he became of age, purchased land, and executed his notes and a mortgage to secure the purchase money, ‘and, two days after-wards, in consideration of the notes being given úp to him, executed a quit-claim deed of the premises to the person of whom he had purchased, who went immediately into possession, and he and his grantees remained in possession several year* before A intimated any intention to disaffirm the oontvact, — it was held, in an action of ejectment, brought by A after having arrived at full age, against the person in possession,</p> <p>That A could not affirm the deed which conveyed the land to him and avoid the mortgage executed by him to secure the consideration money ; and</p> <p>That, as the quit-claim deed was voidable only by the infant, on his coming of age, ho ought, if he meant to avoid it, to have given notice of disaffirmance, or otherwise have rejected the contract, within a reasonable time after he became of age ; and, not having done so, he was presumed to have affirmed the quit-claim deed, and, therefore, was not entitled to recover.</p>

Action of debt on a jail bond, dated-,-August 10, 1816, Cxecu-Sed by said Dodge, as principal, and Waterman, as surety, to Chapin Keith, sheriff, of Washington county, and by said Keith, on the 1st day of June, i 820, after the breach of the condition, assigned to the plaintiff and one John Kendall, since deceased,whom the plaintiff survived. The breach was alleged to have been on Vhe 30th day ofNovember, 1819.

This bill was brought to foreclose the equity of redemption in certain mortgaged premises, conveyed by the intestate to the plaintiffs to secure the payment of a sum of money. Shaw, solicitor for the defendant, moved to dismiss the bill, on the ground that the defendant was allowed, by the probate court, one year from the time of taking upon himself the trust of administrator, to pay the debts of the intestate, which had not elapsed, and that the statute, (Comp.

This was- an appeal from an order of two justices, removing a pauper from Dorset to Manchester. On the trial of the issue joined upon the plea that the pauper was unduly removed, for that his settlement was not in Manchester, the appellees proved a residence of the pauper in Manchester in 1815 and 1816 for more than a year.

<p>Joseph Adams and Peter Sawyer were joint administrators of the estate of John Starlc. While they acted as such, Sawyer had the custody and disposal of many articles ol personal property, belonging to the estate of Stark, and died without settling bis accounts about the same before the probate court. This left Adams sole administrator of the estate of Stark. Sawyer left a will in which Corbin was appointed his executor, wlio acted as such. Corbin represented the estate of Sawyer to be insolvent, and commissioners were appointed before whom the plaintiff exhibited his claim as administrator of Stark, for the property disposed of by Sawyer while he was co-administrator. This claim was disallowed by the commissioners ; and, after their report was returned to the court of probate, the plaintiff appealed to the county court, where his claim was prosecuted in the form of an action of» account. Judgement to account was rendered and an auditor appointed. The auditor made a report, containing a circumstantial detail of the points litigated, and the facts proved with regard to each. Exceptions were taken to this report; but it was accepted by the county court; and exceptions were taken to that decision, upon which the cause came to this Court. The points here litigated embraced but a small part of the report,with the exception to the plaintiff’s mode of declaring; and sufficient is alluded to in the arguments, and in the opinion of the Court, to be understood, without stating the report at large.</p> <p>Argument for the defendant. — 1. The defendant contends, the action of account will not lie against Sawyer, under the reported statement of facts, and, of course, the claim could not have *been presented to commissioners. — Stat. 142.</p> <p>2. That, if the action be properly brought, the court have decided incorrectly, in saying that the plaintiff ought not to answer the question, “ whether he is now holden to the creditors of Stark’s estate for their dividends.</p> <p>3. That, if the action will lie, the defendant ought to have been allowed to put the question to the plaintiff, “ whether the plaintiff now has in his hands any of the estate of John Stark, and, if so, how much ?</p> <p>4. That, if there should be a judgement for the plaintiff in this case, he ought not to recover cost, but to pay cost to the defendant. —Stat. 354.</p> <p>Argument for the plaintiff. — 1. The plaintiff, being the representative of the estate of Stark, has the legal title to the funds of the estate in whatsoever hands they may be found, unless barred by some rigid rule of law. — -Stat. 340.</p> <p>2. From the report it is evident, that the defendant’s testator was indebted to that estate. The question is, can the defendant retain the property of Stark’s estate in his hands, and refuse to account for it, or pay over to Stark’s representative ? Here is a debt, and the representative of all, who are interested in the fund, or estate, to which it is owing; and why shall it not be paid to him ? It would seem, if the defendant is not in a situation to hold, against all the world, the sum found by the auditor to be due from the estate which he represented, that the judgement of the county court, accepting the report, ought to be affirmed.— Stat. 142 ; 5 Pick. Rep. 96 ; Executors of Smith vs. Chapman’s executors, 5 Conn. 14; Executors of Loop vs. Administrators of J.B. Loop, 1 Vt. 177.</p> <p>3. The questions, proposed by the defendant’s counsel to the plaintiff, for the purpose stated by the auditor, were properly overruled : for The declared object of the inquiry was frivolous and impertinent. 2. The inquiry cannot be considered proper in any point of view — The action is brought to compel the defendant to give an account of the property, which his testator had received as administrator, and which had not been administered upon.</p> <p>4. The question as to costs depends upon a construction of the proviso to the 93d section of the probate act. — (Stat. 354.J A fair construction of this section, taken in connexion with the provisions made for exhibiting and litigating all manner of actions before commissioners, and with the nature of an appeal therefrom, on any one cause of action, will not sustain the doctrine contended for by the defendant.</p>

<p>The bill stated that the plaintiff was indebted to Moses Robinson in his life time on several promissory notes, executed by the plaintiff to him, amounting in the whole to $2000, upon which notes, Heman Swift, administrator of Moses Robinson, had commenced suits, which were pending against the plaintiff; that Samuel Robinson died several years ago, leaving a will of which Isaac Tichenor was appointed executor, who proved the will and took letters testamentary thereupon ; in and by which will the said Samuel gave all the rest and residue of his estate, after the payment of debts and certain legacies, to the plaintiff and the said Moses Robinson as joint residuary legatees,and that the said Samuel left a large estate more than sufficient to pay his debts and the legacies given by his will; that the estate of Moses Robinson was indebted to the estate of Samuel Robinson in several sums of money, amounting in the whole to the sum of $5000, which remained unpaid, one half of which belonged and ought to be paid over to the plaintiff as one of the residuary legatees aforesaid ; prayed that an account might be taken, and that the said Heman as administrator as aforesaid might be ordered to give up the notes in suit against the plaintiff', in part payment of the plaintiff’s share of the money so due from the estate of Moses Robinson, and to pay over the residue thereof to the plaintiff. The defendants demurred severally to the bill.</p> <p>It is one of the first principles-' of f . .. pleadings, that the orator s bill must contain a positive and distinct statement-of every fact and circumstahce necessary to estab-fish his claim. This role is so well settled that if the answer states a new case, the orator cannot have relief according to the case made in the answer without amending his bill. — 2 Mad. 168, 169. The same general rule applies as at.law, that the proof must correspond with the allegations ; for the court pronounces the decree secundum allegata et probata. — 2 Swift's Dig. 203. A demurrer admits all the facts which are well pleaded, but denies that the orator is entitled to the relief sought. The court is bound to say whether,from the facts as stated in the bill, a decree can be made against the defendant.-2 JIZad.281,282; 2 Swift, 216,217.</p> <p>I. The bill prays fora decree against the administrator of Moses Robinson on the ground that the orator is residuary legatee to the estate of Samuel Robinson, and the estate of Moses Robinson is a debtor to that estate. It is contended that</p> <p>I. The claim, if any, must be prosecuted in the name of the executor. The executor represents the testator, both at law and in equity, in relation to the personal estate. — Toller's Executor, 133, 157, 257, 431,454; 1 Swift, 444,446; JYewland on cont. 113, 512, 513. There is no privity between the legatee and the debtor, who is answerable only to the personal representatives of the testator. — 1 Mad. 224,287; 2 Swift’s Dig. 220, 221 ; 6 Vesey,, 757', Alsagar vs. Rowly. A collusion between executor and debtor is not pretended. It is not even alleged that the executor has been requested to prosecute. If the orator intended to rely upon a collusion, it must be specially charged. The common-allegation to that efiect is mere matter of form. — % Mad. 169. A collusion existing, it would not enable the legatee to seize upon the persona] estate, or prosecute in bis own name, The remedy, and the only remedy, to be sought, is to apply to the court of probate, and have the executor removed ; or to a court of chancery, and have a receiver appointed ‘, — (Stat. ch, 44, s. 34, 35 ; 2 Swift, 159 ; 2 Mad. 235 ;) or an order made that the executor file a bill within a limited time, or in default, that the legatee may be at liberty to file a bill. — 2 Mad. 505. It would be strange, indeed, if the legatee can call every debtor into chancery to pay over one moiety of his debt. The other co-legatee must have the same remedy. The executor in both cases must be a party, and the result would be (the debts being no more than usual) that tite executor must-take up a permanent residence in chancery : tresides, the whole business of a probate court would be transferred to the court of chancery.</p> <p>2. On the ground .of a set-off, no decree can be made against the administrator of Moses Robinson. In cases of set-ofi a court of equity adopts the same principle as a court of law. Both at law and in equity the debts tobe set off must be such as can be prosecuted at the suit of the defendant at law, and the orator in chancery. The debts must be mutual, or, in other words, the parties must be indebted to each other, and the debts must accrue from a dealing between them. — 2 Swift’s Dig. 149 ; 1 Wheat. Sel. 117.; 4 Johns. ‘Chan. 11; 2 Mad. 661 ; 3 Johns. ‘Chan. Rep» 358. The damages must be liquidated ; for on applcation for -a set-off, a court of equity, as well as a court of law, will not settle a contested claim. — Esp. JV. P. (pt. 2,J 75 ; 1 Wheat. Sel. 120 ; 2 Swift’s Dig. 149. Although our statute extends the power of courts of law on this point, it does not affect chancery powers. A court óf equity goes no farther than acourt of law in cases of set off, unless on the ground of fraud, accident, or mistake, a case is made in the bill for equitable interference. And in this bill nothing of the kind is alleged, or even intimated. The ground, and, the only ground, upon which equity is called to interfere for the purpose of set-off is, that the orator is indebted to the estate of Moses Robinson, and has a claim as a legatee on the estate of Samuel Robinson, and that the estate of Moses Robinson is indebted to that estate. I'f the estate of Moses Robinson was insolvent, or any other circumstance existed which would render it fraudulent in his administrator to recover at law upon the notes, equity might compel an offset upon equitable principles. Not upon the ground that chancery possesses a jurisdiction in relation to offsets different from a court of law, but upon the ground that equity will relieve against fraud in every shape from the lowest to the highest grade. — 1 Swift, 712 ; 2 Swift, 149 5 2 Mad. Ch-. 66 ; 1 Swan. Ch. Rep. 30.</p> <p>3. By the will of Samuel Robinson, the orator and MosesRobin-son’s estate are residuary legatees, and, of course, the residue belongs to them as tenants in common. It is alleged in the bill the estate of Samuel Robinson amounts to seventeen thousand dollars, and that there is a large amount of property to be divided between the residuary legatees. It does not appear from the bill there has been any division between the residuary legatees, or that Moses Robinson or his representatives have received any part or portion of the residue. Under such circumstances the orator cannot sustain a bill against his co-tenant for one moiety of the debt claimed to be due to the estate of Samuel Robinson. If a legacy is given to a debtor of the testator, the debt must be deduc-tec* ^"rom ^e§ac)b unless it amounts to more than the legacy. It does not appear from the bill but that a large amount will be due to the estate of Moses Robinson, after deducting the debt. If the orator can sustain a bill against his co-tenant in equity, it must be framed upon the ground of a tenancy in common, praying for a partition, or division of the whole residue.</p> <p>II. From the facts stated in the bill there can be no decree against the executor of Samuel Robinson.</p> <p>1. The bill is not framed with a view to a decree against the executor for the payment of any money, or rendering any account to the orator of his executorship. The executor is made a party merely to enable the orator to obtain a decree against the administrator of Moses Robinson, as the decree would affect his rights as executor. To give the bill a different construction would render it demurrable. A claim against the estate of Moses Robinson, and also against the executor for the residue generally,cannot be united in the same bill, as it would involve matters and demands of distinct and separate natures. — 2 Swif¿,202; 2 Mad.294.,</p> <p>2. There can be no decree against the executor for the residue, or any part thereof. The allegation in the bill that the orator is entitled to a large sum, as a residuary legatee, without stating the facts from which it may appear, amounts to nothing. It k a mere conclusion of the bill, and is not at all supported by the facts as stated in the bill. It is not alleged that, aside from the claim against the estate of Moses Robinson, there was any personal property belonging to the estate of Samuel Robinson. The executor is not accountable for the real estate. Th j legatees may divide it among themselves, unless the executo--wants it for the payment of debts, &c. It is not alleged thn debts and specific legacies have been paid. It is alleged that after the payment of the debts, fee., there ivill he a large amount of property to be divided ; from which_ it would seem the debts and legacies are not paid. It is not alleged the executor has closed bis account in the probate court, or any order made or proceeding had thereon for that purpose. — Siat. ch. 44, s. 44. It does not appear any order has been made by the probate court for the payment of the legacies,or for a division of the residue among the residuary legatees. — Siat. ch. 44, s. 48, 58, 78, 79. Under such circumstances the legatees cannot call the executor in! r chancey for the residue. If he wishes to prosecute his claim,15 his remedy is at law. The debts and special legacies being paid, the legatee may call the executor to account before the probate court, and, if dissatisfied with the decree, may appeal to the Supreme Court, (and this is our court of chancery,) and before both courts will have the benefit of the executor’s oath. An order of the probate court, dividing the residue and fixing the time ior the executor to pay or deliver the same to the legatees, is the next step tobe taken. If the executor neglects to pay over, the legatee may bring an action on the probate bond. Or if he wishes still further to avail himself of the oath of the executor, he may bring an action of account. — Stat. ch. 10, s. 6. The probate court is organized to settle the estate of persons deceased, and, for this purpose, the power of all the courts are concentrated. To sustain a bill upon circumstances, as disclosed in this case, would delay and embarrass the settlement of estates, and transfer the whole business of the probate court to the court of chancery. If a bill can be brought in equity by the residuary legatee, it must be upon the disclosure of circumstances shewing that he has not adequate remedy at law. Courts of equity and courts of law have not, in our jurisprudence, concurrent jurisdiction. — 2 Swift, 217, 218, 204, 205.</p> <p>1. The first cause of demurrer assigned by the defendant, Tichenor, is, that the claim, if any, should be presented by him as executor of Samuel Robinson, and not in the name of the orator. This would be a good objection at law, but we think not in chancery.</p> <p>The bill states, that after the payment of all debts, specific legacies, and the expenses of the settlement of the estate of Samuel Robinson, there will be a large amount of property to go to the orator and said Moses, or their representatives, as residuary legatees : and then proceeds to set out specific claims due the estate of Samuel Robinson, and then alleges the funds in the hands of Moses Robinson, or rather his administrator, to pay these claims, and then goes on to state, that in equity and good conscience the orator is entitled to have allowed him one moiety of the said claims.</p> <p>No good reason can be assigned why the orator should not be permitted to sustain the bill. Chancery has jurisdiction over an executor to enforce payment of a legacy, and, if he recover possession of assets, he holds them as trustee for the legatees.— 1 Mad. Ch. 578 ; 2 .Font, 316, n. d. So a bill for distribution of personal estate will be sustained in England, notwithstanding the jurisdiction of the spiritual courts in this matter.— 1 Vernon, 133, 134. See also, 8 Vin. Mr. 548 ; Andrews vs. Powers, 2 Vernon, 47, and note; 1 Strange, 666. Sometimes chancery will sustain a proceeding in spiritual courts for a legacy. — 2 AtJc. 420; 2 Fonb. 317. n. d. Our probate law has no negative words ousting chancery of its jurisdiction, and there is no reason why it. should be done by implication. The rights of all parties are secured. — 2 Com. Dig. 603. 3 g. 3 ; 1 Vernon, 94, 162; 2 Vernon, 205, 306 ; Fonb. 376, n.p. To hold that the executor of Samuel Robinson must prosecute the claims for the benefit of residuary legatees, and the residuary legatees the executor, would require two suits, where all may be done by one. It is true, if it appears by the bill or answer that the executor wants the funds for payment of debts and specific legacies, his claim is paramount •: but this must appear, to defeat the equitable claim of the residuary legatee into whosesoever hands the assets may be. The principles of the English cases sustain this bill.</p> <p>2. Th-e 2nd cause of demurrer on the part of the executor of Samuel Robinson, is, that the bill does not pray for a decree, against him for the payment of monies, or to render an account of his executorship to the orator. In answer to this objection it may be said, that it is common for a person to be made a co-defendant against whom no remedy is sought. In the present case the executor has the legal interest,' and if the claims specified in the bill were wanting for payment of debts, his right would be paramount to the orators. Hence the necessity of making him a co-defendant. The subject of the bill is not to effect a settlemer t of the executor’s account: and as the bill is not predicated on the ground that the claims specified in it have gone into the hands of the executor, there is no reason why a decree against him should be sought.</p> <p>The remaining objections to the bill by this defendant is of a genera] character, viz. the orator has not made such a case as entitles him to any discovery or relief as against this defendant. It Is true, no relief is asked against this defendant, and if we are correct in our opinion, this is no cause of demurrer.</p> <p>The objections made by H. Swift to the bill, as contained in bis demurrer, are,</p> <p>1. The same as the one contained in the demurrer of Tickenor. This is sufficiently answered.</p> <p>2. That no decree can be made against him as administrator on the ground of a set-off. The funds, a moiety of which the orator claims, are in the hands of this defendant as the adrninis-trator of Moses Robinson/and the claim, upon which the ofiset is asked, is due from the orator to said Swijt as such administrator.</p> <p>Here is, in equity, a mutuality of interest, and chancery will decree set-offs in all such cases.</p> <p>3. The next cause of demurrer is, that the orator and Moses Robinson’s estate are tenants in common of the property which may belong to them as residuary legatees under the will of Samuel Robinson, and that the orator cannot sustain a bill against his co-tenant for a moiety of the debt claimed to be due the estate of Samuel Robinson, but must bring his bill for a division ox partition of the whole of the residue. In answer to this objection, it may be said that it does not appear from the bill that the orator and the estate of Moses Robinson have any interest in common unsettled, under the will of Samuel Robinson, which will not be settled in this suit. The object of this bill is not to procure a settlement between the orator and the estate of Moses Robinson of their interest under the will, or to call a sum of money out of the hands of the administrator of Moses Robinson ; but to enforce an-application of the funds in his hands by a decree making the set-off, the relief sought by the orator will be obtained. Again, this is a proceeding against the estate of Moses Robinson, the executor of Samuel Robinson, being a party proforma, the funds, a moiety of which are claimed in the bill, not having gone into his hands, there is no pretence in the bill that there are further funds in the hands of the administrator of Moses Robinson, a moiety of which the orator can claim. But it will be contended, that, even admitting that it appeared in the bill that there are other funds which ought to be the subject of division, still this would be no cause of demurrer to this bill. If we are correct in our views, we are not-only entitled to a discovery, but also to relief in the premises as-against the administrator of Moses Robinson.</p>

<p>This was an appeal from a decree of the court of probate for ihe district of Chittenden. Gideon King, by his will, not only appointed Follett his executor, but gave him a legacy; and after sundry legacies, bequeathed the residue of his estate to John H. King, and his brother, William King. Follett proceeded tosettle the estate, and on a day appointed, with regular previous notice, presented his account for settlement, and gave no credit to the estate for what he himself claimed as legatee of the earnings of stock in the Lake Champlain Steam Boat Company. The said John H. King, filed his petition before the court of probate, setting forth, that the earnings of the steam boats, after the last dividend, made in the lifetime of said Gideon, and before his decease, amounted to such a sum, that his share of the same, as residuary legatee, amounted to the sum of eight hundred dollars; and prayed that Follett, as executor, might be decreed to pay him said sum. The appellee so established these faets, that the couj't of probate decreed accordingly, notwithstanding Folletfs claim to retain the same as special legatee. The legacy to Follett was as follows, to wit i “I give and bequeath unto Timothy Follett, of said Burlington, one hundred and sixty shares of stock, being all my interest in the Lake Champlain Steam Boat Company, be the same more or less ; provided, nevertheless, that said Follett shall regularly pay, once in each year, to John II. King the sum of three hundred dollars, and to William King the sum of three hundred dollars, to be paid annually as long as the dividends on my said stock shall amount to the said sum so to be paid as aforesaid, and no longer.” Follett appealed to this Court from the said decree against him.</p> <p>1. P. Richardson, jor the appellee, contended, 1. That Follett was not, by virtue of the 4th clause of the will of Gideon King, a special or general legatee of the will, but a trustee of John II. King, [and, also, that, if Follett had neglected to pay over to King, as expressed in the proviso to said clause, the office of trustee was at an end.</p> <p>2. That if Follett should be considered by the Court as a residuary legatee of said will,the legacies under the will are all subject to the claims against said estate in proportion to their respective amounts.</p> <p>3. That the dividends of said stock, and all other personal es-fate, ought to have been sold and applied in payment of the debts of the estate, before the sale of the real estate, which the executor neglected to do.</p> <p>4. That if the stock was an unconditional legacy or bequest, still the dividends, which had accrued before the death of the testator, belongs to the estate, and not to Folleit as legatee. —Preston on legacies, 190. Legacy of money due on mortgage carries debt, not the interest.</p> <p>5. That a construction, that said stock and the dividends belonged to Folleit from the time of the death of the testator, as long as the dividends, should amount to $600,00per annum, and no longer, would be inequitable and unjust; as it would be in the power of the executor so to diminish its value, as wholly to defeat the claims- of the other legatees.</p> <p>6. This will’, having been written by the executor and one who claims under it, must be construed strongly against him.</p> <p>7. The general rule is, that a bequest of so much stock is a general legacy, unless there is some special ground for construing it specific. — Roberts on wills, 373.</p> <p>8-. The 4th clause shows a condition, which the executor must show a compliance with, or he can claim nothing under it. — Preston on legacies, 193.</p> <p>C. Adams, for the appellant. — 1. The claim, made by the plaintiff, was not properly made before the probate court, and therefore the decree ought to be reversed.</p> <p>2. That, by the will of Gideon King, the whole- interest of said King in his steam- boat stock was devised to the defendant.</p> <p>3. That, on the death of said King, the defendant became the sole owner of said stock.</p> <p>4. That dividends are parcel of the stock, growing out of it, and must necessarily be paid to those who own the stock at the time of the dividend.</p> <p>5. The intention of King, that the whole should pass, is evident from the provision annexed to the legacy, that Folleit should pay out of the dividends ‡300 a year to each of the sons.</p> <p>Mr. Bailey, on the same side, contended, that this was a specific legacy,. and cited Preston .oil legacies, 53,54; 2 Mad. Ch. % H ; 2 Bro. C. Rep. 108; 4 Ves. 555, 568 ; 7 Johns. C. Rep. 258; 1 Atk. 417. ’</p> <p>That a specific legacy vests immediately on the death of the testator.' — Barrington vs. Kistam, 6 Ves. 345 ; Prest, on Leg. 54; 4 Ves. 748; — anti that the value of a special legacy is to be calculated at the death of the testator. — Prest, on Leg. 534, 160 ; 5 Ves. 205.</p> <p>That it was the intention of the testator, by the clause in his will, to bequeath to Follett all his interest in the Lake Champlain Steam Boat Company, and that he had described in express terms the benefit which he designed to secure to J. H. & W. King out of this portion ofhis property ; that the stock carried with it whatever was incident or appurtenant to it. — Philips vs. Chamberlain, 4 V?s. Jun. 51 ; Rob. on wills, 375, i 90, 396 ; Ray vs. Lawn, 1 Bro. Ch. Rep. 76 ; Page vs. Leapingwell, 18 Ves. 463 ; Kent's Com. 375; Rocldnghamvs.Penrice, 1 P. Will. 177; Williams vs. WilUams, 2 Bro. Ch. Rep. 87; Gallimi vs. JYoble, 3 Merr. 691; l P. Wins. 598; Morley vs. Bird, 3 Ves. 628; Paris vs. Paris, 10 Ves. 185 ; 2 Bro. Rep. 54; Bandy vs. Wainwright, 14 Ves. 66 ; Witts vs. Steere, 13 Ves. 363-; Watson vs. Watson, 7 Johns. C. Rep. 258.</p> <p>Mr. Alien, for the appellee, replied.</p>

<p>An auditor’s report will be set aside, unless he reports the facts he finds proved, as the ground of his decision,upon each litigated item. Heshould not report the evidence of those facts, hut the facts themselves.</p>

<p>This case was brought up from the county court upon exceptions allowed by the judges. The facts appeared to be these : The plaintiff, in the year 1820, gave three notes to one Johnson Foote, from forty to ninety dollars each ; and, in the year 1823, the plaintiff held a note against the defendant, which he delivered up to the defendant to be cancelled, also sold and delivered him a certain horse; in consideration of which the defendant promised the plaintiff that he would pay, and save the plaintiff harmless from, the said three notes, which said Johnson Foote held against the plaintiff they being payable in three successive years. The defendant failed to pay said notes, or either of them, and the plaintiff was sued, and compelled to pay to Johnson Foote the note first payable; and brought his action against the defendant upon his contract of indemnity, alleging,, as a breach, whai related to that note only, which he had thus been compelled to pay. This action was appealed to the county court. Soon afterwards, the plaintiff was sued upon the note to Johnson 1 1 Foote, which next became payable, and was compelled to pay this also. He then brought his action against the defendant, uPon ^le same contract, alleging, as a breach,what related to said second note only. This action was, also, appealed to the county court,and was the one now under consideration. Both actions being in the same county court together,the plaintiff recovered judgement in the one first commenced. The defendant then insisted,that a justice of the peace could have no jurisdiction of this action; the entire contract,concerning the three notes,exceeding the sum of one hundred dollars. He,also, contended, that no successive actions could be sustained upon this contract; and, therefore, that the final judgement, recovered by the plaintiff in said first action, barred his right of recovery in this action. A further question was, also, raised. The plaintiff, in order to prove the contract, set up in his declaration, offered a memorandum in writing, not signed by any person, accompanied with parol proof, that this memorandum contained the true contract between these parties. The writing was objected to by the defendant, but admitted by the court.</p> <p>The written pleadings closed in issues to the Court; and, upon the finding, by the county court, of the foregoing facts, they rendered judgement for the plaintiff. To their decision, upon the several points raised, the defendant excepted.</p> <p>The exceptions were now argued by C. Mams, for the defendant, and by H. Men, for the plaintiff.</p>

<p>This was an action of ejectment, to recover the one undivided fourth part of an acre of land, with a sawmill thereon. Plea, not guilty, and issue to the jury. On trial the plaintiff offered a deed from the said Joseph Sinclear to. Gideon O. Dixon ; to which the defendant objected ; because the acknowledgement was without date : but the court overruled the objection, and the deed was read. The plaintiff then offered the copy of a judgement, execution and levy, in his favor against the said Gideon O. Dixon ; to which the defendant objected, for the following reasons : because the levy was not made by the same officer who received the execution to levy ; that it did not appear that the officer levying the same had first demanded the money to satisfy it; that it did not appear, any legal notice was given to Dixon, or his attorney, to appoint appraisers; nor that the appraisers were legally sworn; and that said execution was not extended on the whole interest of Cxideon O. Dixon in the land, on which the execution was levied. But the court overruled the several objections,and the levy was read.</p> <p>The defendant then offered to show by the attorney of record of Gideon O. Dixon, that no notice had been given, by the officer levying said execution, of said levy, either to the said Gideon O. Dixon, or to said attorney ; to which the plaintiS objected, and the court rejected the evidence. The defendant also offered to show that he and Gideon O. Dixon were tenants in common of said mill; that it was repaired by their mutual direction, and that, in such reparation, the defendant had expended the sum of five hundred dollars over and above his half of the expenses, and that he had a lien on said mill for the repayment. But the plaintiff objected to this testimony, and it was rejected by the court; and the jury returned a verdict for the plaintiff. The defendant also offered to show, that an indorsement had been made upon the note, specified in the suit of Galusha vs. Dixon, of eighty dollars paid to said Galusha, and that the same had been erased without the consent of said Dixon, and judgement rendered for the whole amount: but the court rejected the testimony.</p> <p>To which several decisions of the court the defendant excepted, and the case was ordered to be removed to this Court.</p> <p>1. The deed from the defendant to G. O. Dixon ought not to have been read, for want of a Aue acknowledgement.</p> <p>2. The levy of the execution ought not to have been read. 1. There was no legal demand of the debt and cost. 2. It does not appear, that any notice was given to said Dixon, or to his attorney, to appoint appraisers. 3. It does not appear what oath was administered to the appraisers. 4. The land levied upon is not sufficiently described. 5. It does not appear by the levy what those privileges were, which were appraised; and a reference to them, as set forth in another deed, is defective. 6. It does not appear by any record, that said execution has been recorded in the town clerk’s office at any time since the levy. The Court will not decide that the entry, K received for record, January 17, 1827,” is a mistake. 7. The execution should have been extended on all the interests of said Dixon in the land extended on.</p> <p>3. The defendant should have been permitted to have shown that notice to appoint appraisers was not given to said Dixon, nor to his attorney of record.</p> <p>4. Property owned by tenants in common is holdcn for all necessary reparation, made by either of the tenants, and that Sinclear ought to have been permitted to show such reparation.—Stanton vs. Bannister, 2 Vt. Rep. 464; Fitzherbert, 127; Carver vs. Miller, 4 Mass. Rep. 559.</p> <p>Lastly, The defendant ought to have been permitted to show the erasure of the indorsement of eighty dollars upon the note3 on which the plaintiff obtained his judgement against Dixon.</p> <p>1. The first objection contained in defendant’s bill of exceptions is deemed too frivolous to require an answer. The recording has amply supplied a date to the ac-knowledgement.</p> <p>2. The execution was in the hands of Ezbon Sanford, deputy sheriff,, at the time of the levy ; and he had full authority to levy the same, notwithstanding the same may have been in the hands of another deputy of the same sheriff, at a former time.</p> <p>3. There is no necessity for the officer to demand the money of the debtor in any case, before a levy on land. But in this case it appears, that the debtor was absent, and gone to parts unknown, and that the officer demanded payment of the debtor’s wife, and, no other property being shown, the levy was made.</p> <p>4. As it respects the other objections to the levy, it will appear, that the officer’s return is in strict conformity with the provisions of the statute, and that the same is conclusive between the parties, and cannot be impeached by parol testimony. — See Stat.p. 210; Hathaway vs. Phelps, 2 Aik. Rep. 84; 11 Mass. 163; 17 Mass. 433.</p> <p>5. The 7th section of the statute, directing the levying and serving of executions,provides, “ that when the real estate of any debt- or shall be held in joint tenancy, or tenancy in common, with the real estate of other persons, the officer holding the execution may extend the same on such estate or part thereof,” &c. — Stat. p. 212.</p> <p>6-. Although the defendant might have made repairs upon the mill, while he .and Dixon, the debtor, occupied it as tenants in common, and to a greater amount than his equal share, yet this does not, in law, create any lien upon the land, so as to prevent a levy by judgement creditors. Nor can the same be set off against the rents, due from defendant to plaintiff in this action, which accrued since the title became absolute in the plaintiff.</p> <p>7. The judgement in favor of the plaintiff against Dixon cannot be impeached by defendant ? it is conclsive as to him until set aside; and especially, since he had acquired no legal interest in the land as against Dixon, the judgement debtor.</p>

<p>This was an action, of ejectment for lands in Charlotte, in Chit-tenden county. The defendant recovered judgemeqtin the county court, and the plaintiff filed exceptions, upon which the action was brought up to this Court.</p> <p>It appears by the exceptions, that, in 1822, Ammi Fuller owned the lands in question, and made his will, in one part of which fie devised as follows : “ I give and devise to the Methodist Episcopal Church in Charlotte, to be disposed of as hereafter directed, the remaining fourth part of the real estate of which I shall be possessed, or have a right to possess, at my decease, forever: the interest of which is to be appropriated for the support and payment of the constant preaching of the gospel in Charlotte, by the ministers of the Methodist Episcopal Church or Society; the it 1 i t i i t i principal, or original stock, to be kept whole and unexpended, and the interest thereof, only, annually appropriated, and expended as aforesaid.” He then proceeded to provide for the expenditure of the surplus, if any, in erecting a meeting-house, or purchasing books for said Church or society. And, in case said Church or society should become extinct, the interest was to be placed at the •disposal of the annual conference of metbodists, whose bounds might comprise said town of Charlotte. The will then proceeds as follows : “ I hereby name and appoint, as agents and trustees for and in behalf of the said Methodist Church in said Charlotte, Ithiel Stone, Jonathan Breakenridge, Asa Forbes, Joseph Si-monds,Thomas N.Hickox, Jonathan Breakenridge,Jun. and My - von Breakenridge, and their successors in office, who may be hereafter appointed for that purpose, according to the rules and regulations of said Church, to receive, possess, improve, and take charge of the aforesaid one fourth part of the real estate for the use and benefit of said Church, as aforesaid •, to place and always keep the same at interest, and see said interest appropriated as before montioned j always, however, in all things subject to the rules, regulations, and discipline of the said Methodist Church.”</p> <p>The plaintiff was the sole acting executor of the said will, and, inMarcb, 1827, bya decree of the court of probate, the lands in question were divided off to said Church or society. This action was brought in January, 1828. The defendant being then in possession of the premise's, under said church or trustees.</p>

<p>A covenant in a deed of land, that the grantor is well seized in fee simple, ■and has goodright to bargain and sell the premises, imports a covenant of title.</p> <p>in such case the measure of damages is the consideration money and interestthereon.</p> <p>That the covenantee had conveyed away the land .by deed ofwarranty, is no defence for the covenantor.</p> <p>In case ofarecovery, by the covenantee, on the covenant of seizin, the court will order stay of execution till he shall have lodged a discharge, or quit-claim deed, from his grantee.</p> <p>That the plaintiff had cut timber on tbe land subsequently to the date of the deed from the covenantor to him, cannot be given in evidence in mitigation of damages, because he is liable to the owner of the land for such injury.</p>

<p>One who owns a proprietor's right in a town may recover in ejectment against any one who is in possession without a title*</p> <p>And he can so recover, even if the land sued for isa part of a public highway, or court-house common.</p> <p>The defendant's having taken a lease from the town of the land in question, for a building-spot, and erected a building thereon, does not vary the plaintiff’s right to recover; and *</p> <p>If this even made defendant a tenant in common with the plaintiff, it would operate as an ouster, and no demand would be necessary before the commencement of tire action.</p>

<p>When an original plain tiff is sued for what is done under his execution, it is no de-fence, that he had sold the note upon which his judgement was rendered, before his suit was brought.</p> <p>Doubted whether an execution from a justice’s judgement for over fifty three dollars damages, made to run sixty days only, is to be considered absolutely void, or only voidable.</p>

<p>This was ejectment for lots no. 5 and 6 in the town of Vineyard. Plea, not guilty. At the trial in the county court it appeared in evidence, that in July, 1821, one Samuel H. Farnsworth recovered the seizin and possession of the premises, in an action of ejectment against one Helmes, commenced in the year 1818; that soon after the recovery of the judgement he took possession by virtue of a writ of habere jadas seisinam, and put one Wait into possession of the p'remises as his tenant, who continued in possession till the spring of 1823, when the defendant brought a written message from Farnsworth to Wait, stating that Farnsworth had sold the premises to the defendant, and requesting Wait to deliver ap the possession to him; that thereupon Wait delivered pos» session to the defendant, who entered and had continued in the occupancy of the premises ever since $ that the plaintiff on the 9th day of August, 1826, attached the land in a suit against Farns-worth, and afterwards recovered judgement in the action, and levied his execution on the premises.</p> <p>The defendant offered to prove by the testimony of two of the appraisers named in the officer’s return on the execution, that the land which they appraised was not the same which was described in the return. This testimony was excluded by the court. The defendant then, in order to show title in himself, produced in evidence a deed of the premises from Amy Hatch, Betsey H. Farns-worth, and Charles B. Hatch to himself, dated January 26,1827, and a deed of the same from Charles Hatch to Amy Hatch for life, with remainder in fee to Betsey H. Farnsworth and Charles B. Hatch, dated January 22, 1821, and recorded March 13th, 1S27. The defendant then offered a writing purporting to be a copy of a deed of the premises from Samuel H. Farnsworth to Charles Hatch, dated March 11th, 1819, with a receipt on the back of the writing, signed by said Farnsworth, acknowledging that be had received a deed, of which the within was a true copy, for the purpose of procuring it to be recorded ; which writing, with the receipt thereon, had been recorded January 21st, 1823 ; and the defendant proved by a Mr. Lamb, that, in 1819, he witnessed a deed from Samuel H. Farnsworth to Charles Hatch, which the witness understood conveyed land lying in some one of the islands. To this writing the counsel for the plaintiff objected; and, there being no other evidence of the execution and ac-knowledgement of the original deed, or of its loss or destruction, the court were of opinion that the writing, and testimony given in connection therewith, was not proper evidence to show title in the defendant, and directed a verdict for the plaintiff. The defendant’s counsel filed exceptions on which the case was brought to this Court.</p>

This was an action of assumpsit on a promissory note commenced before a justice of the peace, and appealed to the county court.

<p>This was an action of trover brought to recover the value of certain carding machines. Plea, the general issue. At 'the trial in the county court it appeared in evidence, that the plain-tiffbad conveyed, by deed, to John F. Hutchinson a small piece of land, with a woolen factory standing thereon,anti all the machinery therein and thereto belonging ; and,at the same time, Hutchinson executed to the plaintiff a mortgage deed of the same premises, including the machinery, to secure the payment of the purchase money. Hutchinson, immediately after the sale, took possession of the premises, and carried on his work, using the maT-chinery which was there, until the said carding machines were taken away by the defendant. It appeared that said machine? were placed in the building, and connected by a -band with other wheels in motion, by which the machines were propelled, in the usual way, and were not otherwise fastened to the building, but remained stationary, by reason of their own weight, while the wheels were in motion ; that they could not be carried out at the door of the building without being taken apart, but might easily have been taken in pieces so as to be carried out. The plaintiff had obtained a decree of foreclosure against Hutchinson of the mortgaged premises, embracing all the notes given for the purchase, and no part of the redemption money had been paid. The defendant justified the taking and sale of said machines by virtue of regular executions against Hutchinson, issued on judgements, recovered in suits in which the machines had been previously attached.. The court instructed the jury, that the machines, in the situation in which they were, when taken by the defendant, were real estate, attached' to the freehold, and were not liable to be attached ©r taken in execution as personal property. The jury thereupon returned a verdict for the plaintiff. The defendant filed exceptions, on which the cause was removed to this Court.</p> <p>The deed from Tobias to Hutchinson, vested in Hutchinson all the real and personal property therein mentioned, including the carding machines now in question. No mortgage of the machines, if they be personal property, could so vest them in Tlobjas 3S; to protect them from attachment by the creditors of Hutchinson, while he remained in possession.</p> <p>I. The first question is, are carding machines, setupand used' in a building, a part ofthe'freehold, as fixtures and appurtenances, or are they personal property ? ‘Whether an article be a fixture seems, by the courts, to have been at times decided from, a consideration of the object and author of its erection, which does not so much determine what is a fixture, as who is its owner. This may be seen by comparing Fenton vs. Robart, (2 East, 88,). with Elwes vs. Maw, (3 East, 55.J But these points should not be confounded,asitis important, especially under the practice of the attachment law, to determine by the intrinsic character, and by inspection of the property, whether it be personal. This cannot depend on the author or object of its erection: — 1st. Because by inspection the question could not be settled. 2d. Because, if so, the same article, without visible alteration, might, by mere change of ownership, change its character.</p> <p>Whether an article be a fixture must be determined by intrinsic circumstances, and this depends on a consideration of these facts. 1st. Can it be separated without violence or injury to the freehold ? 2d. Is it particularly adapted to that place, or can it be as beneficially used elsewhere ? Tested by these, or any other principles adopted in the books, carding machines are not fixtures, if so, they are simply personal property, and not 'within any of those decisions which go to settle to whom fixtures belong. 1st. They are not affixed to the ground or realty. 2d. They •could be removed without injury to them or the building. 3d. They have no adaptation peculiar to the building, but could be as well used elsewhere. 4th. They, or a smaller machine similarly fixed, would be the subject of larceny. 5th. They are merely of a personal nature, to carry on a trade. 6th. They have ever been so treated in this state by attachment and sale, and have never been considered as passing, as appurtenant to the freehold, by deed thereof, unless particularly mentioned, and were so treated by Tobias. 7th. To decide otherwise, and to hold for the •plaintiff, that they were essential to the beneficial enjoyment of the freehold, and constituted a part of it, would necessarily hold that, if put in by a tenant, they vested in the landlord. 8th. All this has been fully decided, especially in New-York and Massachusetts.—Penton vs. Robart, 2 East, 88; Elwes vs. Maw, 3 East, 55; Taylor vs. Townsend, 8 Mass. Rep. 411; Gale vs. Ward, 14 do. 352; CJ0ssy0t£$[Slkiiitjiyfy Johns. Rep. 116.</p> <p>IÍ. Being simply pl&soirorproperty, thejfcould not be mortgaged so as to protect then|JraHma^g^^ithe creditors of the mortgagor, he remainiijgmrpossession ; noiidoes the fact of being used upon, and mdfetga^r^tl^i&e&e¡J estate, constitute an exception. 1st. All coStj^even thosrysrao have not holden that sales must be accompaniecTwiiifpfe^ession to be binding on credi-fors, have ever holden that a mortgage or pledge of personal property must be. Indeed, it is difficult to understand how a mortgagee or bailee of personal property, having neither ownership nor possession, can be considered as having any legal right in the property, even as against the mortgagor, as the debt would remain. 2d. It would be inconvenient and dangerous to make the case of machines, or any other personal property mortgaged with real estate, an exception to the general rule of attachment, as the property of the possessor ; because the wholesomeness of the rule is beginning to be universally acknowledged, so much so, that in Massachusetts its legislative adoption is called for, and every exception breaks in upon its unity and destroys certainty and confidence. Ifitisto be an exception, it would confound all principles and rights. Personal property mortgaged lias no equity of redemption, but vests absolutely, on failure of payment. Now would this mortgagee take this personal property absolutely, and yet have bis claim on the realty for his debt ? Or how can it be apportioned ? How can the creditors of either of the parties attach this personal property ? and with what proportion of the debt does it stand encumbered ? Does not the attaching creditor, the defendant in this case, entitle himself to some right, and what ? 3d. This point has also been decided.—Taylor vs. Townsend, 8 Mass. Rep. 411; Gale vs. Ward, 14 do. 352; 17 Johns. Rep. 116.</p> <p>This case naturally resolves itself into two questions, viz. First, Is the property in question to be regarded to the purposes of this mortgage, and between these parties, as a part of the realty ? Secondly, If it be not so considered, still is it not protected by the mortgage ?</p> <p>1. As to the question, what is a part of the realty in reference to fixtures or erections for the purposes of trade,and connected with manufacturing establishments, I apprehend no general rule can be laid down. But it depends mainly upon the particular relation between the claimants; and what the law regards ¿as real estate, between certain parties, would not be so considered as to others. There is one rule between the heir and executor. Another between tenant for life and remainderman. And a third between landlord and tenant, and a fourth, I believe I may add, between seller and purchaser. In this case it is contended that the machinery is tobe considered as attached to the realty, and partaking of its nature, so far as to be, to the purposes of the mortgage, a part of it. The factory or establishment, with all its running gear and machinery,was sold by the plaintiff to Hutchinson entire, and a mortgage taken in the same way. The machinery passed attached to, and a part of, the realty — was so treated by the parties — was indispensable to the enjoyment of the realty to the purposes, and in the manner, contemplated by the parties, and formed an integral part of the thing sold. Had the machinery been disconrifc'cted with the land, or put in by Hutchinson after his purchase, the case would have been different.</p> <p>As to what is a part of the realty,the question should be considered with reference to the nature and natural uses of the property. A mill or factory is an entire thing,useful and valuable only as such,and necessarily comprehends something more than an empty building. The machinery is not only a necessary, but often constitutes the principal,part of its value. It should also be considered with reference to the relative rights of those who may be claimants. And it is believed that under any rule of the common law, the property will be found to belong to the plaintiff. First, as between the heir and executor, property thus situated would unquestionably belong to the heir. — See Com. Dig. title, Biens (B) ; 1 H. Black. 259, note ; Ambler, 395; 1 Swift’s Dig. 534; 3 Aik. 13. This case is not analogous to the case of executor and heir, and bears no analogy to that o[landlord and tenant. — Rogers vs. Rage, Sup. Court, Jan. 1819. Secondly. If the case were analogous to the case of tenant for life and remainderman, or landlord and tenant, the result would be the same, if we consider the mortgagor in this case as the tenant of the plaintiff, the mortgagee, whicli is the most favorable view for the defendant; yet all the cases cited by the defendant will be found inapplicable. They all relate to the right of the tenant to remove fixtures erected by himself during his term.- — Com. Dig. tit. execution, C 4 ; Swift’s Dig. 534. If Hutchinson had put in machinery after his purchase, it is admitted, it would have been subject to attachment. But it was never supposed that a tenant for life or years had the right to remove fixtures attached to the estate by the landlord, before the commencement of his term. Indeed, if he should attempt it, he would be liable for waste, and a court of chancery would enjoin him. If Hutchinson had no right, as between him and the plaintiff,to remove the machinery, most certainly no person, claiming under him,had. Regarding Hutchinson as a mortgagor or vendor, the question as to the property in the machinery depends, as between him and the plaintiff, upon the terms of the mortgage. This is specific as to the machinery. The result is, that his creditors could not lawfully attach and remove the property unless the mortgage could be avoided as fraudulent.</p> <p>II. Admitting that the machinery in question is to be deemed personal property, still the question arises,is it not protected by the mortgage ? As the mortgage is good between the parties to it, the only ground upon which the defendant can prevail, is, that the possession of Hutchinson was fraudulent as to creditors. The general rule upon this subject is not now to be disputed ; but it admits of various exceptions. Inthelanguage oí Judge Kent, (9 Johns. 337, etseq.) such possession is to be considered fraudulent, unless for special reasons to be shown and approved of by the court. The reason for the possession of Hutchinson in this case is a strong one. The machinery was connected with the real estate, and necessary to the enjoyment of it — was a necessary and integral part of the property purchased, and of little or no value, except as attached to the freehold. Without it, the object of the purchase would be defeated. Indeed, his possession was a matter ol necessity. Cannot the vendor of such a property, who sells it entire, take an entire security which shall be valid ; or must he, to render his mortgage security valid,dismantle the property, and render it úseles to all parties ? It may well be doubted whether sound policy requires such an extension of the rule. The idea of fraud is inconsistent with the statement of the case. For it is certainly reasonable that the plaintiff should have a security by mortgage upon the entire property. The idea of a false credit is also done away, for the recorded title of Hutchinson to this property shows that the property was purchased entire, and at the same time mortgaged in the same manner. The rule, although it may have been extended to mere tools, and without being attached to the realty, has never been extended to machinery of this description.</p> <p>There are two cases similar to this which have been decided in this country, which deserve a particular notice. In Gale vs. Ward,{ 14 .Mass.352,)the machinery washeldsubjecttotheattachment. But in that case the machinery was not embraced by name in the mortgage, and the question was simply whether, without being named in the mortgage, it was in such a sense a part of the realty as to be necessarily, and by mere operation of law, bound by it. That case,however,is professedly founded on Pool’s case, (Salk. 368,) and the reason given in the latter case, why the property was liable to attachment, was, that the tenant might himself remove it at any time during his term. The court in Massachusetts either went upon this ground first suggested, or they failed to discover the difference between Pool’s case and the case where the mortgagee not only sells the property attached to the realty, but fixes it in that state by the express terms of the mortgage. The other case is C?-essonvs. Stout, (17 Johns. 116.) This decision is pointedly in our favor. A part of the machinery in that case was attached to the real estate, and sold with it. It was also named in the mortgage. A part was put in afterwards, and the whole was levied upon, before the mortgagee took possession. The court decided that, with respect to the first, the plaintiff was entitled to hold it against the attachment, whether it was real or personal estate, and this, although the rule as to fraud there obtained to its full extent. The case, therefore, is a direct authority to show that the possession of the mortgagee, under such circumstances, is not fraudulent. They did,' indeed, decide that the property was personal. But this was in answer to a position taken by the plaintiff, that the machinery put in after the mortgage, became so identified with the real estate as to become subject to the mortgage. On the whole this case decides two points; 1st. That when the mortgage embraces the machinery by name, it protects the machinery against the creditors of the mortgagor. 2d. That the possession of the mortgagor of the machinery is not fraudulent.</p>

This was a writ o f error to reverse a judgement rendered by the county court, in an action on book account, in which the Pontiffs in error were defendants, and the defendant in error was plaintiff- The auditor’s report, on which the judgement was tendered, and to which exceptions were taken in the court below, stated,that the services charged in the plaintiff’s account were performed by him on the congregational meeting house in Rutland ; that the defendants were a…

<p>Where an amendment of a declaration does not malte thebail liable to a greater sum, nor subject him to any new or additional responsibility, he íb notthereby discharged, though the amendment be by a new count.</p>

<p>This was an action of trover for certain goods, wares and merchandise- The defendant justified the taking under, and by virtue of, a wrft of execution in favor of one Benjamin Knower against one Ira Beefy, wh’o had’ formerly owned the goods, and of whom tiie plaintiff claimed to have purchased them. The plaintiff recovered a verdict in the county court, and exceptions were taken to some decisions and the charge to the jury ancf the cause was brought to this Court for a hearing on said exceptions. The facts slated in the exceptions,as attempted to be proved, so far as important to the points urged in argument before this Court, were as follow : The plaintiff was surety for Seely, to the Farmers’" and Mechanics’Bank in Albany,upon a note of about $1500; and after-wards became holden to James M’Daniels for his paying and discharging the debt. Seely being then the owner of certain goods, wares and merchandise in a retail store, and of cloth, yarn, Stc,., in an unfinished state, in a factory, and a quantity of wool, agreed with the plaintiff to let him have the possession of said goods, and Seely was to assist or have a voice in the manufacture and safe of them. Neither Seefy nor the plaintiff were manufacturers. The plaintiff was to apply the avails in satisfaction of the debts for which he was holden for Seely, in the first place. The plaintiff, pursuant to said contract with Seely, came into possession oí said property, and conducted the manufacturing for several weeks. The goods were under an attachment against Seely, but it did not appear for what amount nor in whose favor the attachment was. Knower made some ^proposition to the plaintiff about manufactur-ingthe wool and redeeming it from the attachment. The particulars of this proposition did not appear in the case, in the evening before the attachment or levy made by the defendant, the plaintiff informed Seely that he should not consent to the proposition of Knower, but would dispose of all the goods at once, and have nothing further to do with them, Seely repeatedly urged the plaintiff to go on with the contract in good faith. The plaintiff told Seely if he agreed to manufacture the woof he would not do it. Seely then told the plaintiff he should not be bound by the «centrad on his part; and immediately after, the defendant took the goods, which is the wrong complained of by the plaintiff. The defendant also adduced testimony to show, that, in point of fact, although the plaintiff oame into possession of said factory and store, Seely was advising as to their manufactures; and further to show, that there was a joint possession of the plaintiff and Seely in the said property, prior to the taking by the defendant. And the defendant contended, that this joint possession, of the vendor and purchaser, rendered the sale void as against creditors. The court, among other things, instructed the jury, that, if the plaintiff had purchased the goods of Seely and was in possession of them, his after refusal to perform as above mentioned,would not divest him of the possession, nor render the goods liable to he taken by the creditors of Seely ; and that a joint possession of the plaintiff and Seely must be considered a fraud in law, and would render void the sale as to creditors : but, if the sale was bona fide, (explaining what constituted a bona fide sale,) to render it void as against creditors, it must appear that the possession and use of the vendor was of the same description as that of a joint owner in .using, occupying and disposing of the property. The defendant excepted to the charge, as also to the decision of the court in rejecting evi • dence by him offered, tending to prove, that M’Daniels, when he paid said debt to the bank, had Seely’s property in his hands.to a larger amount than he then paid.</p>

<p>One for whose benefit a suit was commenced, but is not the nominal plaintiff of record, cannot be rendered a competent witness for the plaintiffby an assignment,executed on trial to a third person, of his interest in the demand on which the suit is predicated.</p> <p>A note, originally negotiable, loses its negotiability bj the decease of the signer, and an adjudication upon the note by the commissioners.</p>

This was an action of ejectment for lot no. 2, in the 13th range of lands in Winhall, which came up from the county court upon the following bill of exceptions. The defendant’s plea was the general issue only. “ The plaintiff gave in evidence, on the trial, the charter of Winhall, by which it appeared, that Ebenezer Fisk was an origin-ai proprietor, and the grantee under whom the plaintiff claimed the right in question.

<p>This was an action of trespass, for breaking and entering the plaintiff’s close in Bennington, treading down the grass, and injuring the soil. The defendants pleaded in bar an application to the select men to lay out a public highway; their refusal; an application to the road commissioners, who also refused, till the petitioners had given a bond to the town, securing them against any expense in making the road ; that this bond was given, and the road laid out three rods wide, and the survey regularly recorded, with the order of the road commissioners, that the road be made and opened within one year, from the time of laying oui and establishing the same ; and that the defendants, as servants to the petitioners, and by their command, entered upon that part P^a'nt'®",s cl°se> which was within the survey of said road, took down the fence and made the road, doing no unnecessary damage, &c.; which was the same trespass complained of, Sic. To this plea the plaintiff demurred. The county court rendered judgement, that the plea was sufficient. To this decision the plaintiff excepted, and the cause was sent to this Court for a hearing upon the same question.</p>

This was an action brought against the town of Pownal, for the neglect of Jason Bushnell, constable of said town, in not serving or returning an execution. On the trial in the county court, the offered Busbnell as a witness) who was objected to by the plaintiff on the ground of interest, he being ultimately lia-hie to indemnify the town for his neglects.

<p>Lottery tickets, regularly issued, and authorized by the laws of this state, may be sold and charged on book, and the value recovered in an action of book debt.</p> <p>Iftbere is a dispute whether the plaintiffs owned the tickets charged, letters from the manager of the lottery to the plaintiffs, the hand writing being proved, may be evidence to this point, as a part of the res gesta.</p> <p>If lottery tickets are issued contrary to our general statute, and without authority by a special statute or grant, they are of no value; and if sold and charged on book, the vendor can recover nothing for them.</p> <p>The manager of a lottery, granted by statute of this state, which requires bonds previous to his right to act, cannot delegate his whole authority, and have the lottery proceed, while he resides out of the U. States.</p> <p>When the grant of a lottery requires three managers, and provides a mode of filling vacancies, one can never legally act alone.</p> <p>By reason of a provision in our statute, matters proper to be pleaded to the action, if not so pleaded, may yet be urged before auditors, and they report the facts to the court in the form of a special verdict.</p>

<p>When a testator gives all his personal estate to his wife, and makes no provision for the payment of debts, the law makes the debts a lien upon the personal estate ; and it operates like his giving her his personal estate, upon condition of her paying the debts.</p> <p>When a devise of $200 is made to the widow, as a lien upon a farm devised to others upon condition of paying this $200, the executors may, if they choose, let the de* visees of this farm take possession at the end of one year, and do not thereby render themselves liable for this $200 : but the widow must pursue her lien upon the land, by a bill in chancery.</p> <p>The widow, in such estate, has no claim upon the executors to account for the rents and profits of the real estate, as personal estate, any longer than one year; there beingno extension of the time for settlement, by the court of probate.</p>

This was an indictment for thejt, upon which .the respondent was arraigned, and tried, and convicted, in the county court. After verdict, the respondent filed the following motion in arrest, which was overruled, and sentence passed upon him; by virtue oí which he was sent to the stale prison.

<p>An ex parte deposition, filed with the clerk less than thirty days before court, but remaining there through the term, and till the succeeding term of the court, may then be read.</p> <p>In an action of account against one as bailiff and receiver, the plaintiff’s interest must not be joint with any other person.</p> <p>Plaintiff is entitled to an accounting for notes in defendant’s hands, and money received upon such notes, though the plaintiff was feme covert at the date of the notes, but not so when they became binding upon the signers.</p> <p>Such notes being payable to the defendant,' does not obstruct the plaintiff’s recovery, if they were executed for thesole benefit of the plaintiff.</p>

This was an action of debt upon a jail bond. The declaration was in the usual form.

The appellees were petitioners to the road commissioners for the laying out of a public highway through the town of Sunder-land. The highway was laid out, and cost taxed in favor of the petitioners against the town of Sunderland; and the survey of the road was regurlarly recorded.

In this case the writ directed the officer “ to summon Benjamin Bishop of Richmond, trustee of Eliakim Spooner, late of Richmond, an absconding or concealed debtor.” The further direc-(¡on required by the statute, commanding the officer to leave a copy, of the writ at the last and usual place of abode of the absconcding debtor,was not inserted in any part of the writ.

This case came before the court on the report of an auditor in an action on book account.

This was an action of trespass on tjie case, wherein the plaintiff complained, in several counts, of special damage and injury to his land and buildings, by reason of a nuisance upon the public common or highway in front of his said land and buildings, consisting of a printing office erected and continued by the defendants. Plea not guilty.

This was an indictment for a nuisance in maintaining and continuing a certain store in Burlington.

This case came before the court on the report of referees. There were three causes between the same parties which had been referred to the same referees. In the present case they had reported that the defendant recover of the plaintiff the sum of •twenty nine dollars and seventy eight cents damages.

This was an action on a promissory note, dated April 29tb, 1829, for $20,50, payable to Harvey Morgan, or bearer, in thirty days from date, ánd transferre’d to the plaintiff on the 1st day of May, 1829. On the trial in the county court it appeared in evidence, that in June following, the plaintiff gave notice to the defendant, the maker, that he had purchased the note.

This case was an action of ejectment, commenced in 1821, to recover lots ho. 98 and 99 in the town'of Alburgb, in which the plaintiffs declared on a seizin in fee for the whole of -those lots.

This was an action of ejectment in which the plaintiffs claimed title to the demanded premises by virtue of a mortgage deed executed to them by one Samuel D. Brainerd, dated June 20,1820, to secure them for signing a note to one Mattocks, as surety for Brainerd, for the sum of $54,63, payable on or before the • first day of November, 1820. The deed was conditioned to be void on the payment of the note by Brainerd.

This was an action of ejectment for seventeen acres of land in Salisbury, part of a tract of forty-one acres. The parties both claimed title from Jacob Bartholomew, the plaintiff under a deed from said Bartholomew, dated August 7, 1820, conveying the said forty-one acres and also another lot and house in Salisbury. The defendant, Seymour, claimed title to the premises by virtue of the levy of an execution against said Bartholomew made in June, 1823.

This was an action of assumpsit, brought against C. and J. W. Wood on an alleged agreement made by them with the plaintiffs, Joel Boardman and Clark Foot, not to sue one Horace Boardman, a debtor to the defendants, within one year from the time of making the agreement. Plea the general issue.

This was an action of assumpsit on a promissory note, executed by the defendant to the plaintiff, dated June 17,1820, for $400, payable in three years from the 1st day of November next after date. Plea, general issue. It appeared on the trial in the county court that the note in question, together with four others, was secured by a mortgage on certain real estate in Weston in the county of Windsor.

This was an action of trespass quare clausum fregit, wherein the plaintiff complained that the defendant, with force and arms, on the 2d day of December, 1828, broke and entered the plaintiff's close, situated in Bennington, and then and there broke down and destroyed the fence of the plaintiff, enclosing and surrounding said close.

This case came before the Court on objections filed to the report of auditors in an action on hook account. The report stated, that, on the trial before the auditors, the plaintiff offered in evidence the deposition of Lemira Abbott; which the defendant objected to on the ground that he had not had reasonable notice of the taking of said deposition. • It appeared that the citation was served on the defendant the same day on which the deposition was taken by the magistrate.